UNIVERSITY 

OF  CALIFORNIA 

LOS  ANGELES 


SCHOOL  OF  LAW 
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THE  LAW  OF  TORTS 


THE  LAW  OF  TORTS 


BY 


MELVILLE   MADISON   BIGELOAY 


PH.D.    HARVARD 


SEVENTH  EDITION 


BOSTON 

LITTLE,  BROWN,  AND   COMPANY 

1901 


;  0/- 


/ 


«■•■    I 

NOV  26 '35 


190 1 


*-^  c?  ^- — ^_Jk^ 


Entered  according  to  Act  of  Congress,  in  the  year  1878, 

By  Melville  31.  Bigelow, 

In  the  Office  of  the  Librarian  of  Congress,  at  Washington. 

Entered  according  to  Act  of  Congress,  in  the  year  1882, 

By  Melville  M.  Bigelow, 

In  the  Office  of  the  Librarian  of  Congress,  at  Washington. 

Copyright,  1SS6,  1S91,  1S94,  1896,  1901, 
By  Melville  M.  Bigelow. 


dnitersitg  19rr'?s: 
JonK  Wilson  and  Son,  Cambuidge,  U.S.A. 


do 


PREFACE 

TO    THE    SEVENTH    EDITION. 


Some  changes  of  classification  in  this  edition  should  be 
pointed  out.  Part  I.  is  now  entitled  Lawful  Acts  done 
by  Wrongful  Means  or  of  M^alice,  and  Part  II.,  Unlawful 
Acts ;  the  explanation  of  which  will  be  found  in  para- 
graphs 25-31.  A  readjustment  of  several  chapters  has 
been  made  accordingly. 

Slander  of  Title,  being  a  specific  tort  of  growing  im- 
portance, is  now  made  a  distinct  chapter. 

Malicious  Interference  with  Contract,  of  former  edi- 
tions, becomes,  as  the  result  of  recent  decisions,  two 
chapters,  Maliciously  Procuring  Refusal  to  Contract,  and 
Procuring  Breach  of  Contract ;  the  first  as  the  last  chapter 
of  Part  I.,  the  second  as  the  first  chapter  of  Part  II.  On 
this  subject  see  the  consideration  of  malice,  in  paragraphs 
35-50. 

In  Part  III.,  Negligence,  certain  gaps  have  been  filled, 
and  the  whole  subject  completed  on  the  lines  laid  out 
for  it. 

The  whole  field  of  tort  is  now  accordingly  covered, 
in  general  theory,  and  the  work  for  the  first  time  com- 
pleted. If  the  reader  cares  to  see  the  starting  point,  he 
is  referred  to  the  Preface,  p.  vii,  of  my  Leading  Cases 
on  Torts  (1875). 

M.  M.  B. 

Boston,  January  1,  1901. 


CONTENTS. 


PAGE 

Cases  Cited xiii 

General  Theory  and  Doctrine 1 

§  1.   Of  Legal  Right :  Domain  of  Tort 3 

2.  Of  Legal  Privilege 8 

3.  Of  Legal  Duty 11 

4.  Of  Damage 27 

5.  Definition  of  Tort 29 

6.  Of  Personal  Relation,  or  Status,  etc 30 

7.  Of  Legal  Cause  :  Contributory  Fault 43 

8.  Of  Termination  of  Liability 45 

9.  Of  Death  of  Plaintiff  or  Defendant 49 

10.  Of  Assignability  of  Actions  for  Tort 51 

SPECIFIC   TORTS. 

Part  I. 

Lawful  Acts  done  by  Wrongful  Means  or  of  Malice. 

breach  of  duty  to  refrain  from  fraud  or  malice. 

CHAPTER  L 

1.    Laic ful  Acts  done  hy  Wroiujful  Means :  Fraud. 

Deceit 55 

§  1.  What  must  be  Proved 55 

2.  Of  the  Representation 56 

3.  Of  Defendant's  Knowledge  of  Falsity 68 

4.  Of  Plaintiff's  Ignorance  of  Falsity 72 

5.  Of  the  Intention  that  the  Representation  should  be  acted 

upon 79 

6.  Of  Acting  upon  the  Representation 81 

7.  Of  Kindred  Wrongs  :   Quasi-Deceit :   Unfair  Competition  83 


vm  CONTENTS, 

CHAPTER  II. 

2,    Lawful  Acts  done  of  Malice. 

PAGE 

Slander  of  Title 86 

§  1.  Of  the  Distinction  between  Slander  of  Title  and  Defama- 
tion       86 

2.  Of  the  Elements  of  the  Action 87 

CHAPTER   III. 

2.  Lawful  Acts  done  of  Malice.,  continued. 

Malicious  Prosecution 90 

§  1.  What  must  be  Proved 90 

2.  Of  the  Termination  of  the  Prosecution 91 

3.  Of  the  Want  of  Probable  Cause 97 

4.  Of  Malice 106 

5.  Of  Damage 107 

6.  Of  Want  of  Jurisdiction,  etc 108 

7.  Of  Kindred  Wrongs 109 

CHAPTER   IV.  y^' 

2.    Lawful  Acts  done  of  Malice,  concluded. 

Maliciously  Procuring  Refusal  to  Contract    ....  115 

§  1.   Of  Means  and  Malice  :  What  must  be  Proved    ....  115 
2.  Of  Malicious  Hindrance  of   one's  Existing  Business  or 

Occupation 120 

Part   II. 

Unlawful  Acts. 

breach  of  absolt'te  duty. 

CHAPTER  V.    1 

Procuring  Breach  of  Contract 127 

§  1.   Of  Master  and  Servant 127 

2.  What  must  be  Proved 128 

3.  Of  Contract  in  General 129 

4.  Of  Damage 133 


CONTENTS.  IX 
CHAPTER  VI.     ^X 

PAGE 

Seduction 134 

§  1.  Of  Enticing  away  Children 134 

2.  Of   Seduction  stricto  sensu:   Parent   and    Child:    What 

must  be  Proved,  etc 135 

3.  Of  Guardian  and  Ward  :  What  must  be  Proved,  etc.       .  141 

4.  Of  Husband  and  AVife :  What  must  be  Proved,  etc.     .     .  142 

CHAPTER  VII.   ^/^ 

Slander  and  Libel 149 

§  1.   Of  Defamation  Actionable 'per  se  :  What  must  be  Proved  149 

2.  Of  the  Interpretation  of  Language 150 

3.  Of  the  Publication  of  Defamation  and  Special  Damage    .  152 

4.  Of  the  Imputation  of  having  Committed  a  Crime    .     .     .  155 

5.  Of  the  Imputation  of  having  a  Contagious  or  Infectious 

Disease  of  a  Disgraceful  Kind 157 

6.  Of   an  Imputation  affecting   the  Plaintiff  in  his  Office, 

Business,  or  Occupation 158 

7.  Of  an  Imputation  tending  to  Disinherit  the  Plaintiff  .     .  160 

8.  Of   an    Imputation   conveyed   by  Writing,    Printing,  or 

Figure  ;  that  is,  of  Libel 161 

9.  Of  the  Truth  of  the  Charge 162 

10.  Of  Privileged  Communications  :  Malice 164 

11.  Of  Criticism 180 

CHAPTER   VIIL 

Assault  and  Battery 184 

§1.  Of  Assault  (without  contact) :  What  must  be  Proved,  etc.  184 

2.  Of  Batteries  :  What  must  be  Proved,  etc 187 

3.  Of    Justifiable   Assault :      Self-defence :     '  Son     Assault 

Demesne ' 192 

4.  Of  Violence  to  or  towards  one's  Servants 195 

CHAPTER   IX.       \^ 

False  Imprisonment 199 

§  1.  Of  the  Nature  of  the  Restraint :  What  must  be  Proved,  etc.  199 

2.  Of  Arrest  with  Warrant 201 

3.  Of  Arrest  without  Warrant 217 


CONTENTS. 


CHAPTER   X. 

FA6B 

Trespasses  upon  Property 223 

§  1.  What  must  be  Proved 223 

2.  Of  Possession 223 

3.  Of  what  constitutes  a  Trespass  to  Property 236 


CHAPTER  XL 


iX 


Conversion 247 

§  1.  What  must  be  Proved 2i8 

2.  Of  Possession 242 

3.  Of  what  constitutes  Conversion 258 


CHAPTER  Xn. 

Infringement  of  Patents,  Trade  Marks,  AND^QiiB¥«itJSTS~  266 
§  1-Of^atenJs:  WhatmustbeProvgdretcr'r^     .     ...     266 

2.  Of  Trade  Marks 275 

3.  Of  Copyrights :  What  must  be  Proved,  etc 276 


CHAPTER  XIII. 

Violation  of  Rights  of  Support 283 

§1.  Of  Lateral  Support :  What  must  be  Proved,  etc.     .     .     .  283 

2.  Of  Subjacent  Support :  What  must  be  Proved,  etc.     .     .  290 

CHAPTER  XIV.^ 

Violation  of  Water  Rights  •     {,' 293 

§  1.  Of   Usufruct  and   Reasonable   Use   of   Streams :   What 

must  be  Proved,  etc 293 

2.  Of  Sub-surface  Water 297 


CHAPTER  XV. 

Nuisance 299 

§  1.  Of  what  constitutes  a  Nuisance 299 

2.  Of  Public  Nuisances  :  What  must  be  Proved,  etc.  .     .     .  306 


CONTENTS.  XI 


CHAPTER  XVI. 

PAGE 

Damage  by  Aximals 310 

§  1.  What  must  be  Proved,  etc 310 

2.  Of  Escape  of  Animals  :  What  must  be  Proved,  etc.     .     .     312 


CHAPTER  XVn. 


Escape  of  Dangerous  Things 314 

§  1.  Of  the  Nature  of  the  Protection  required  :  What  must  be 

Proved,  etc 314 

2.  Of  the  American  Law 318 

Part  III. 

Events  caused  by  Negligence, 
breach  of  duty  to  refrain  from  negligence. 

CHAPTER  XVIII. 

Negligence 323 

§  1.  What  must  be  Proved,  etc 324 

2.  Of  the  Legal  Conception  of  Negligence  in  General      .     .  324 

3.  Of  Innkeeper  and  Guest 331 

4.  Of  Bailor  and  Bailee 332 

5.  Of  Bailment  for  Service 337 

6.  Of  Professional  Services 339 

7.  Of  Telegraph  Companies 343 

8.  Of  the  Duty  of  Agents,  Servants,  Trustees,  and  the  Like  345 

9.  Of  Public  Bodies  and  Public  Officers 352 

10.  Of  the  Use  of  Premises  :  Duty  to  Plaintiff 354 

11.  Of  Master  and  Servant  :  '  Assuming  the  Risk '       .     .     .  368 

12.  Of     Independent     Contractors :     Control :     '  Collateral ' 

Negligence 378 

13.  Of   Completion   of   Work :    Sale   of   Chattel :   Lease  of 

Premises 383 

14.  Of  Contributory  Fault 388 

15.  Of  Comparative  Negligence 396 

16.  Of  Intervening  Forces 397 

INDEX 409 


CASES    CITED. 


Page 
Abrahams  v.  Kidney  138,  140 

V.  Los  Angeles  Traction  Co.  325 
Abratii  v.  Northeastern  Ky.  Co.  35,  106 
Absor  V.  French  241 

Acre  V.  Starkweather  166 

Adams  v.  Lisber  99 

V.  Waggoner  10 

Aeriifet  v.  Humphreys  3.30 

Agnew  V.  Johnson  262 

Alabama  R.  Co.  v.  Marcus  374 

Albany  Inst,  for  Sav.  v.  Burdick    75,  76 
Albert  v.  Strange  277 

A  hired  v.  Constable  253 

Aldrich  v.  Wright  246 

Alexander  v.  Southey  264 

Allbut    V.    General    Council    of 

Medical  Education  174 

Allen  V.  Crofoot  243,  244 

r.  Flood       16,17,22,2.3,116,118 

119, 120, 122, 127,  130,  135 

V.  Wriglit  222 

AUerton  v.  Allerton  40 

Alton  V.  Midland  Ry.         197,  399,  400 

33 

62 

400 

246 

245 

22 

191 

155,  156 

62 

209 

83 

130 

1.35 

100 

67,68 


Alvey  V.  Reed 

American  Bank  v.  Hammond 

Ames  V.  Union  R.  Co. 

Amick  V.  O'Hara 

Amory  v.  Flyn 

Anderson  v.  Public  Schools 

Andre  v.  Johnson 

Andres  v.  Koppenheaver 

Andrews  i".  Jackson 

V   Marris 

V.  Mockford 
Angle  V.  Chicago  Ry.  Co. 
Anthony  v.  Norton 
Apgar  r.  Woolston 
Arkwright  v.  Newbold 


Page 

Armistead  v.  Wilde 

331 

Armory  v.  Delamirie 

250 

Armstrong  v.  Lancashire  Ry.  Co.   402, 

403 

Arthur  v.  Gayle 

262 

V.  Oakes 

118,  120 

Arundell  v.  White 

93 

Ash  V.  Dawnay 

242 

Ashby  V.  White 

353 

Ashley  v.  Harrison 

128 

Aston  V.  Blagrave 

160 

Atkinson  v.  Doherty 

164 

V.  Matteson 

206 

Atlantic  City  R.  Co.  v. 

Goodin     329, 393 

Austin  V.  Dowling 

213 

V.  Great  Western  Ry.  Co.          400 

V.  Hyiidman 

182 

Ayer  v.  Bartlett 

230 

V.  Craven 

159 

B. 


Bacon  v.  Sheppard 

235 

V.  Towne                                94, 

101 

Baglehole  v.  Walters 

78 

Bailey  r.  Kalamazoo  Pub.  Co. 

182 

V.  Rome  R.  Co. 

369 

V.  Wright 

238 

Baird  v.  Williamson 

316 

Baker  >:  Baker 

142 

V.  Bolton 

198 

V.  Brown 

295 

V.  Hnrnick                              103 

104 

V.  K;msMs  City  R.  Co.          393 

.394 

V.  Stone 

33 

Balston  V.  Bensted 

298 

Ba  t.  Breweries  Co.  r.  Ranstead 

315 

Baltimore  R-  Co.  r.  Baugh 

372 

Bamford  v.  Turnley                   301 

302 

XIV 


CASES  CITED. 


Barbee  v.  Armstead 
Barker  i".  Braham 
Barnes  v.  Allen 

V.  McCrate 

V.  Ward 
Barnett  v.  Guildford 
Barnstable  i:  Thacher 
Harratt  v.  Price 
Barrett  v.  Warren 
Bartley  v.  Ricbtmyer 
Barton  v.  Burton 


Page 
146 
215 
145 
166 
358 
234 
9,  226 
204 
264 
137 
262 


Barwick  v.  Englisb  Joint  Stock 

Bank  37,  40 

Bassett  v.  Salisbury  Mfg.  Co.      23,  298 
Batcbelor  i'.  Fortescue  356,  357 

Bate  Refrigerator  Co.  v.  Gillett        273 
Batson  v.  Donovan  336 

Batterson  v.  Cbicago  Ry.  Co.  374 

Baum  V.  Clause  157,  163 

Baxendale  v.  McMurray  304 

Baxter  v.  Taylor  229 

Bayley  v.  Manchester  R.  Co.        37,  38 
Baynes  v.  Brewster  221,  222 

Beach  v.  Hancock  186 

Beal  V.  Robeson  106 

Beall  V.   South  Devon   Ry.   Co.     334, 

336,  351 
Beard  v.  United  States  193 

Beattie  ;;.  Ebury  65 

Beckvvith  v.  Philby  220 

Beedle  v.  Bennett  273 

Beehler  v.  Daniels  368 

Bell  V.  Hansley  10 

Bellamy  v.  Burch  160 

Bellefontaine  R.  Co.  v.  Snyder         404 
Belo  V.  Wren  168,  171 

Benjamin  v.  Storr  307,  308 

Bennet  v.  Bullock  233 

Bennett  v.  Bennett  142 

V.  Smith  143,  144 

Benton  ;•.  Pratt  132 

Berkshire  Woolen  Co.  v.  Proctor      331 
Bernina,  The  402,  403,  405 

Bernstein  v.  Bernstein  148 

Besebe  v.  Matthews  92,  93 

Bibley  v.  Carter  286 

Bicknell  v.  Dorion  91 

Biddall  v.  Maitland  238 

Bigaouette  v.  Paulet  142,  146,  154 

Billings  V.  Fairbanks  175 

V.  Wing  165 


Page 

Bird  V.  Holbrook  355,  356.  391 

V.  Jones  199,  201 

Birdsey  v.  Butterfield  62 
Bishop  V.  Journal  Newspaper  Co.     150 

V.  Small  63 

Bitting  ;;.  Ten  Eyck  100 

Bixby  V.  Brundige  109 

Black  V.  Buckingham  103 

Blackham  v.  Pugh  176 

Blackman  u.  Johnson  68 

Blake  v.  Barnard  185 

V.  Lanyon  400 

V.  Smith  150 

Blanchard  v.  Beers  269,  270 

Bliss  V.  Hall  302 

Bloodworth  i-.  Gray  157 

Bloxam  v.  Hubbard  263 

Blunt  V.  Little  147 
Blyth  V.  Birmingham  Waterworks 

Co.  304 

V.  Topham  359 

Bodwell  V.  Osgood  22 

Bohn  Mfg.  Co.  v.  Hollis  22 

Bolch  V.  Smith  361 

Bonaparte  v.  Wiseman  283,  284,  379, 

380,  381 

Bonomi  v.  Backhouse  283,  284 

Boogher  v.  Life  Assoc.  35 

Boomer  v.  Wilber  379 

Booth  V.  Ratte'  307 

Bostick  V.  Rutherford  101 

Bosworth  V.  Swansea  393 

Bovill  V.  Pimm  271 

Bowditch  i:  Balchiu  221 

Bowen  v.  Hall  22,  130 

Bowker  v.  Delong  68 

V.  Evans  49,  50 

Boyd  1-.  Cross  98,  106,  107 

Boyle  V.  Brandon  138 

Boyson  v.  Thorn  22,  116,  130 

Bracket  v.  Lubke  381 

Bradbury  v.  Hotten  278 

Bradford  v.  Pickles  22,  23 
Bradford   Glycerine    Co.    v.    St. 

Mary's  Woolen  Co.  318 

Bradlaugh  v.  Newdegate  114 

Bradley  v.  Fisher  354 

V.  Fuller  82 

Bradshaw  r.  Jones  134 

Bradt  v.  Towsley  153 

Brady  v.  Finn  76 


CASES  CITED. 


XV 


Brady  r.  Whitney 
Bramvvell  u.  Halcomb 
Brant  v.  Higgins 
Brass  v.  Maitland 
Braveboy  v.  Cockfield 


Page 
260 

278 

101 

337,  398 

109 


Breese  v.  United  States  Tel.  Co. 

343,  344 
Breiman  v.  Paasch  142,  154 

Brember  v.  Jones  389,  391 

Brewer  v.  Boston  Theatre  351 

Bridge  v.  Grand  June.  Ry.  Co.  394 

Bridges  v.  Hawksworth  251,  252 

Briggs  V.  Taylor  334,  336 

Brinsraead  v.  Harrison  260 

British  Banking  Co.  v.  Charnwood 

Ry.  Co.  37,  39 

Broad  v.  Ham  90,  99,  101 

Broadbent  v.  Imperial  Gas  Co.         301 


V.  Ramsbotham 

297 

Broadhurst  v.  Jones 

1.38 

Brock  V.  Garson 

64,68 

Brockway  v.  Crawford 

220 

Bromiey  v.  Coxwell 

261 

V.  Wallace 

143 

147 

Brooker  v.  Coffin 

150 

155 

Brooks  V.  Curtis 

289 

Broughton  v.  Jackson 

98 

Brown  v.  Accrington  Cotton  Co 

.  41 

,.379 

V.  Carpenter 

245 

V.  Collins 

304, 315 

V.  Eastern  Ry.  Co. 

299 

V.  French 

3.30 

V.  Hanson 

151 

V.  Hoburger 

245 

i:  Kendall 

190 

V.  Lakeman 

95 

V.  Leach 

74 

V.  McGregor 

402 

V.  Myers 

151 

r.  Nickerson 

156 

V.  Watrous 

309 

IJrowning  v.  Hanford 

353 

Hrownlie  v.  Campbell 

56 

Bruff  V.  Mali 

83 

Brushaber  v.  Stegemann 

200 

Bryant  v.  American  Tel.  Co. 

345 

Buck  V.  Aiken 

231 

Buckley  v.  Gross 

227 

Bulmer  v.  Bulmer 

197 

Burke  v.  Broadway  R.  Co. 

404 

Burnard  v.  Haggis 

33 

Page 
Burroughes  v.  Bayne  264 

Burrow  Lithographic  Co.  v.  Sarony   276 
Burrows  v.  March  Gas  Co.  401 

Burt  V.  Place  94,  100,  101 

Busli  V.  Steinmau  379 

Bushel  a.  Miller  252 

Busst  V.  Gibbons  98 

Butcher  v.  Butcher  225 

Butler  V.  Manchester  Ry.  Co.  239 

Butterfield  v.  Forrester  394 

Byam  v.  Farr  272 

Byne  v.  Moore  95,  108 

By  water  v.  Richardson  78 

By  well  Castle,  The  394 


276, 


Caffrey  v.  Darby 

Caird  v.  Sime 

Calder  v.  Halket 

Caledonian  Ry.  Co.  v.  Sprott    285, 

Calkius  V.  Sumner 

Call  V.  Hayes 

Callahan  v.  Bean 

Calloway  v.  Bleaden 

Camp  V.  Martin 

Campbell  ;•.  Spottiswoode    163, 181, 

Cann  v.  Wilson  366, 

Capital  Bank  v.  Henty 

Card  V.  Case 

Cardival  v.  Smith  91,93,  94 

Cardon  v.  McConnell 

Carleton  v.  Franconia  Iron  Co. 

Carlisle  v.  State 

Carpenter  v.  Dresser 

V.  Hale 

V.  Tarrant 
Carr  v.  Hood 
Carratt  v.  Morley 
Carrol  r.  Staten  Island  R.  Co 
Carslake  v.  Mapledoram 
Carson  r.  Edgeworth 
Carstairs  v.  Taylor 
Carter  v.  Baker 

V.  Kingman 

r.  Towne 
Case  V.  Broughton 

V.  DeGoes 

V.  Shepherd 
Cashill  r.  Wright 


253,  256, 


210,  211, 


106, 


249, 

48, 

234, 


331, 
Cass  V.  Boston  &  L.  Ry.  Co.   334, 


277 
211 
292 
166 
161 
408 
268 
158 
182 
398 
150 
310 
,95 

86 
364 
134 
256 
259 
157 
181 
213 
392 
158 
107 
317 
270 
254 
397 

68 
235 
2-24 
332 
335 


XVI 


CASES  CITED. 


Page 
Castriqiio  v.  Behrens  92 

Caswell  u.  Wortli  394 

Cavey  v.  Ledbitter  301 

Cawley  r.  LaCrosse  Ry.  Co.      329,  393 
Cecil  V,  Spurgur  59 

Central  lly.  Co.  v.  Kisch  G7,  74,  75 

Ciiambers  v.  Caulfield  146,  147 

V.  Donaldson  225 

r.  Oehler  202 

Chambersburg   Sav.   Assoc.   Ap- 
peal 349 
Cbannon  r.  Sanford  Co.  369 
Chapman  v.  New  Haven  R.  Co.        402 
V.  Rotliwell                           363,  3(34 
Charitable  Corp.  v.  Sutton  349 
Cliarless  v.  Rankin  280 
Charlton's  Appeal  349 
Charnian  v.  Southeastern  Ry.  Co.    359 
Chase  v.  Silverstone                            298 
Chasemore  v.  Richards         22,  298,  314 
Chatfieid  v.  Wilson                        22,  295 
Chatham  c.  Moffatt  69 
Chattertonr  Secretary  of  State  31,169 
Chauntler  v.  Robinson                        288 
Cheesman  v.  Exall                               250 
Ciienowith  c.  Dickinson                      3^36 
Chesapeake  R.  Co.  v.  Howard     387,  388 
Cliicago  ?•.  Robbins                                43 
Chicago  Fruit  House  Co.  v  Busch   270 
Chicago  Hy.  Co.  v.  Gellison               374 
V.  Lowell                                      394 
i:  Pearson                                      394 
V.  Ross                                            372 
Chicago  &  Q.  R.  Co.  v.  Van  Patten    396 
Childers  v.  Wooler                                68 
Churchill  v.  Hulbert                   238,  239 
I-'.  Siggers                                       112 
Cibber  r.  Sloper                                    147 
Cincinnati  Gazette  Co.  v.  Timber- 
lake                                                     171 
Cincinnati  Tribune  Co.  v.  Bruck        91 
Ciriack  v.  .Merchants'  Woolen  Co.    374, 

376,  394 

City  R.  Co.  V.  Moores  379,  380 

Claflin  i\  Com.  Ins.  Co.  80 

Clari.lge  v.  Tramways  Co.   228',  325,  35(5 

Clark  V.  Chambers  397,  403 

1-.  Cleveland  206 

I'.  Downing  188 

r.  Molynenx  179 

V.  Rideout  249 


Page 
Clark  V.  Thompson  179 
Clarke  v.  Dickson  76,  79 
Clement  v.  Maddick  277 
Clendon  v.  Dinneford  258 
Cleveland  R.  Co.  v.  Terry  402 
Cliff  *;.  Midland  Ry.  Co.  360,  361 
Clinton  v.  Myers  296 
Closson  V.  Staples  91 
Clothier  v.  Webster  352,  353 
Clough  V.  Northwestern  Ry.  Co.  254 
Clowdis  V.  P'resno  Irrigation  Co.  310 
Clowes  V.  Staffordshire  Water- 
works Co.  304 
Cluff  V.  Mut.  Benefit  Ins.  Co.  193 
Clute  V.  Clute  150 
Coaks  V.  Boswell  59 
Coal  Co.  V.  Upson  91 
Code  I'.  Cassiday  68 
Codrington  v.  Lloyd  213 
Coffin  V.  Coffin  168 
Cogel  V.  Kinseley  59 
Coggill  v.  Hartford  R.  Co.  256 
Coggs  v.  Bernard  333 
Cohen  v.  Frost  331 
Cole  V.  Andrews  105 
V.  Curtis  104 
V.  Maundy  240 
V.  New  York  R  Co.  393 
V.  Stewart  229 
L\  Turner  188 
Coleman  v.  New   York  &  N.  H. 

R.  Co.  402 

Collen  V.  Wright  68,  70,  71 

Collett  I'.  Foster  213 

Collins  V.  Denison  80 

V.  .Jackson  68 

Collis  V.  Selden  367,  399 

Columbus  Gas  Co.  v.  Freeland         305 

Comerford  v.  West  End  Ry.  Co.         35 

Commonwealth  v.  Blanding  108 

V.  Carey  221,  222 

V.  Collberg  10 

V.  McLaughlin  221 

V.  Randall  192 

V.  Rourke  227 

V.  Rubin  243 

r.  Tuck  4,  95 

Conant  v.  Alvord  •        71 

Conners  v.  Hennessey  379,  382 

Connolly  v.  Boston  393 

V.  New  York  R.  Co.  393 


CASES   CITED. 


XVU 


Page 

Conrad  v.  Lane  B3 

Consolidated  Coal  Co.   v.  Haenni   SBU, 

370,  371,  373,  874,  375 


Consolidated  Co.  v.  Curtis 
Consolidated  Stone  Co.  v.  Summit 
Cook  V.  Hartle 
Coolidge  V.  Brigham 
Cooper  V.  Greeley 

V.  Harding 

V.  Landon 

V.  Lovering 

V.  McJunkin 

V.  Utterbach 

V.  Willomatt 

V.  Wooliey 
Coote  V.  Lighworth 
Corbett  i'.  Brown 
Corby  i-.  Hill 
Corey  v.  Bath 
Cornford  v.  Carlton  Bank 
Corning  v.  Burden 
Cornish  v.  Stubbs 
Costello  V.  Third  Ave.  R.  Co. 
Coughlin  V.  Gillison 
Coulter  V.  American  Ex.  Co. 
Coventry's  Case 
Coverdale  i'.  Charlton 
Coward  v.  Baddeley 
Cowley  V.  Pulsifer 
Cox  V.  Burbridge 

V.  Cook 

V.  Muncey 
Cragie  v.  Hadley 


253 

374 

260 

60 

162 

213 

^58 

63 

192 

103 

257 

306 

202 

68 

360 

392 

35 

267 

239,  240 
404 
356 

394,  395 

71 

230 

190, 191 

170,  171 
311 


Craig  V. 


Haseli 
V.  Pyles 


150, 


Crawshay  v.  Thompson 

Creamer  i'.  West  End  St.  Ry.  Co, 

Creig  V.  Ward 

Crepps  V.  Durden 

Crescent    Live     Stock     Co.     v 

Butchers'  Union 
Crone  v.  Angell 
Crooker  v.  Bragg 
Crown  V.  Orr 
Crump  V.  Lambert 
Cuff  V.  Newark  R.  Co. 


393 
132 

68 
112 
155 

84 
393 

40 
216 


Cumberland 
Elec.  Co. 
Cundy  v.  Lindsay 
Curtis  ;;.  Ayrault 


100 
151 
293 
369,  370,  373,  374 
305,  306 
41,  42,  43,  379, 
382 
Tel.   Co.   V.   United 

315 
255 
297 


Curtis  V.  Mussey 
Cutts  V.  Spring 


Page 

1»2 
224 


D. 


Dabney  v.  Manning 
Dain  v.  Coning 

V.  Wycoff  10, 

Dallemand  v.  Saalfeldt 
D'Almaine  v.  Boosey 
Dalton  V.  Angus  285,  286,  292, 

Damon  v.  Boston 

V.  Moore  138, 

Daniel  v.  Petersburgh  Ry.  Co. 
Daniels  >-.  Fielding 
Danville  Turnp.  Co.  v.  Stewart 
Darley  Colliery  Co.  v.  Mitchell 
Dasliiell  v.  Griffith  340, 

Dauenhauer  v.  Devine 
Davey  v.  Southwestern  Ry.  Co.  358, 
David  V.  Park 

Davidson  i'.  Nichols  48, 

Davies  v.  Jenkins 

V.  Mann  390,  391, 

Davis  V.  Carey 

V.  Central  Congregational  Soc. 

V.  Getchell 

V.  Pacific  Telephone  Co. 

V.  Reeves 

c.  Shepstone 

V.  United  Engineers 
Davison  v.  Duncan  38, 

Dawkins  v.  Paulet 

V.  Rokeby 

V.  Saxe- Weimar 
Dawson  v.  Chamney 
Dean  i'.  Keate  328, 

V.  Peel 
De  Crcspigny  v.  Wellesley 
Deford  v.  State 
De  Forest  v.  Jewett 
De  Freest  v.  Warner 


374, 
371, 
De  GrafEe  v.  New  York  Central 

R.  Co. 
Delano  v.  Curtis 
Delaware,   Lack.,  etc.   R.   Co.   v. 

Converse 
Delegal  v.  Highley  99, 

Dennehey  v.  Woodsum  92, 

Denton  v.  Great  Northern  Ry. 
Denver  R.  Co.  v.  Sipes 


235 
262 
136 
374 
282 
381 
358 
139 

38 
110 
4U2 
283 
342 
289 
395 

75 
398 
213 
394 
155 
363 
296 

98 
176 
182 
118 
172 
179 
167 
167 
331 
338 
135 
180 
379 
375 
372 

370 
260 

330 
100 
100 
70 
373 


XVlll 


CASES   CITED, 


l)e  Panw  Co.  v.  Stubblefield 

J)LTry  V.  Peek 

Deshon  v.  Bigelow 

Dewey  v.  Osborn 

Dews  (.'.  lliley 

Deyo  V.  Van  Valkenburgh 

207,  208 

Dezell  v.  Odell 
Dickinson  v.  Grand  June. 
Co. 
V.  Worcester 
Dietz  V.  Langlitt 
Diiling  v.  Murray 
Dinks  V.  So.  Yorkshire  Ry.  Co 
Di.xon  V.  Bell 
Dobell  V.  Stevens 
Dockrell  v.  Dougall 
Dodd  (>.  Holme 
Dodson  V.  Meek 
Dodwell  V.  Burford 
Doe  V.  Challis 
V.  Harlow 
Donald  V.  Suckling 
Donaldson  v.  Haldane 
Donovan  r.  Donovan 

V.  Laing  Syndicate 
Dnoling  v.  Budget  Pub.  Co. 
lloorman  v.  Jenkins 
Dougherty  v.  Stepp 
Douglas  V.  Allen 
Doupe  I'.  Genin 
Dowling  r.  Hennings 
Downs  V.  Harper  Hospital 
Doyle  V.  Hort 
V.  Russell 
Doyley  v.  Roberts 
Drew  V.  Comstock 
Driggs  r.  Burton 
Druinm  v.  Cessnum 
Duberley  v.  Gunning 
Dublin   &   Wicklow 

Slattery 
Duff  V.  Budd 
Dunham  r.  Powers 
Dunlop  '•.  Knapp 
Dunn  V.  Hall 
V.  White 
Dunston  v.  Paterson 
Durst  V.  Burton 
Duval  !•.  Davey 
Dyckman  v.  Valiente 


Page 

G8,  0'^ 

25G 

234 

210 

112,  199 

214,  21(j 

259 

Canal 

297 

304 

106,  107 

295 


359 
328 
64 
164 
285,  286 
245 
188 
234 
234 
256 
841 
60 
402 
181 
334,  348 
236 
95 
317 
289 
35 
72 
206 
159 
192 
93,  95,  98, 106 
106 
147 
Ry.    Co.   I'. 
357,  358,  361,  395 
3.36 
166,  167 
353 
38 
68 
203 
40 
1.^)2 
262 


E. 

Eager  v.  Grimvvood 
Eaglesfield  y.  Londonderry 
Eaines  c.  Salem  U.  Co. 
Earle  i\  Holderness 
Eastman  v.  Monastes 
Eaton  V.  Boston  &  L.  R.  Co. 
Eckert  v.  Long  Island  R.  Co 
Edwick  V.  Hawkes 
Einstein  v.  Marshall 
Electric  Tel  Co.  v.  Brett 
Elizabeth  ;-.  Pavement  Co. 
Elliott  V.  Chicago  Ry  Co. 
V.  Fitchburg  R.  Co. 
V.  Pray 
Ellis  V.  American  Tel.  Co. 
V.  Andrews 
V.  Loft  us  Iron  Co. 
V.  Lynn  R.  Co. 
V.  Sheffield  Gas  Co. 
V.  Sinionds 
Elwood  V.  Western  Un.  Tel.  C 
Ely  V.  Ehle 

Embrey  i-.  Owen  293, 

Emerson  v.  Davies 
Emmens  v.  Pottle 
Eno  V.  Del  Vecchio 
Esty  V.  Wilmot 
Evans  v.  Carrington 
V.  Edmonds 
V.  Merri weather 
V.  Walton 
Evansich  v.  G.  Ry.  Co. 
Evansville  v.  Senhenn 
Everett  v.  Henderson         199, 
Exchange  Tel.  Co.  v.  Gregory 


Page 
137 

65 
859 
260 
100 
401 
377 
239 
70 
271 
270,  273 
329 
294,  295 
365 
344,  345 
64 
312,  313 
329 
43 
90,  98 
0.   345 
264 
294,  295 
278,  280 
32,  162 
289 
243 
59 
68 
295 
132,  137 
404 
404 
213,  214 
133 


F. 

Fairhurst  n.  Liverpool  Loan  Asso.  33 
Fairmount  Ry.  Co.  v.  Stutler  197,  399 
Farnsworth  r.  Garrard  338 

V.  Storrs  169 

Farrand  v.  Marshall  284 

Farrant  v.  Barnes         47,  337,  3-56,  398 

V.  Thompson  230,  249 

Farrar  v.  Beswick  262 

V.  Close  120 

Farwell  v.  Boston  R.  Co.  371,  372 

I.'.  Laird  102 


CASES  CITED. 


XIX 


Page 

Feital  v.  Middlesex  R.  Co.  393 

Fermentation  Co.  v,  Maus  267 

Ferren  i-.  Old  Colony  K.  Co.  394 

Fertich  v.  Michener  192 

Fields  V.  Rouse  73 

Filbert  v.  HofE  231 

Fink  V.  Des  Moines  Ice  Co.  369 

Finlay  v.  Chirney  49 

Fiquet  v.  Allison  ,  262 

Firbank  v.  Humphreys  71 
First  Bap.  Church  v.  Utica  R.  Co.     306 

Fisher  v.  Bristow  92 

V.  Budlong  69 

V.  Prince  260 

V.  Thirkell  386,  387 
Fitzgerald  v.  Conn.  River  Paper 

Co.  368,  376,  377,  378 

Fitzjohn  v.  Mackinder  104 

Fitzpatrick  v.  Welch  318 

Fitzsimnions  v.  Joslin  40 

Fleming  v.  Davis  295 

Fletcher  v.  Smith  316 

Flint  V.  Pike  170 

Flood  V.  Jackson  23,  116 

Fogg  V.  Boston  &  L.  R.  Co.  35 

Foley  V.  Peterborough  147 

V.  Wyeth  284 

Folsom  V.  Marsh  279 
Folvvell  y.  Providence  Journal  Co.     180 

Foot  V.  Card  142 

Forde  v.  Skinner  188 

Forster  v.  Forster  139 

Fortman  v.  Rottier  91 

Foster  v.  Charles  80 

V.  Essex  Bank  335 

V.  Mackinnon  75 

Fouldes  V.  Willoughby  252,  262 

Foulkes  V.  Metropolitan  Ry.  Co.    400, 

401 

Fowler  v.  HoUins  254 

Fox  V.  Kinney  369 

V.  Mackreth  59 

Franconia,  The  197 

Frassi  v.  McDonald  382 

Frazier  v.  Brown  22,  298 

Frearson  v.  Loe  273 

Freeman  v.  Cooke  80 

V.  Venner  81,  82 

Freer  v.  Cameron  364 

French  v.  Vining  71 

Frenzel  v.  Miller  59 


Freto  V.  Brown 
Frierson  v.  Hewitt 
Frisbie  v.  Fowler 
Fritz  V.  Hobson 
Frogley  v.  Lovelace 
Fryer  v.  Kinnersley 


Page 
140 
108 
156 

307 
238 
177 


Fuller  V.  Battle  Creek  Health  Food 

Co.  85 

Fuller  V.  Fenner  153 

V.  Wilson  64 

Fulton  V.  Alexander  335 


Gabel  v.  Weisensee  106 

Gaffney  v.  Brown  366 

Galena  R.  Co.  v.  Yarwood  394 

Gallwey  v.  Marshall  159,  160 

Galvin  v.  Bacon  264 

Gannon  v.  Hargadon  297,  304 

Garland  v.  Towne  319 

Garr  v.  Selden  166,  167 

Gassett  v.  Gilbert  10,  178 

Gates  V.  N.  Y.  Recorder  Co.  150 

Gentry  v.  Madden  258 

George  v.  Johnson  78 

V.  Skivington  398,  399 

Gerrish  v.  New  Market  Mfg.  Co.  295 
Getman  v.  Delaware  R.  Co.  388,  394 
Gibbons  v.  Alison  110 

Giblin  v.  McMullen  334,  335 

Gibson  v.  Erie  Ry.  Co.  374,  375 

V.  Leonard  368 

Giles  V.  Walker  288 

Gill  V.  Middleton  343 

Gilmaii  v.  Hill  253 

Gilmore  v.  Driscoll  284,  285,  286 

Glaspie  v.  Keater  68,  69 

Glassey  v.  Hestonville  Ry.  Co.  406 

Glavin  v.  Rhode  Island  Hospital  85 
Glencoe  Land  Co.  v.  Hudson  Co.  22 
Glurck  V.  Scheld  328 

Godefroy  v.  Dalton  342 

Goffin  V.  Donnelly  168 

Goldnamer  v.  O'Brien  10 

Goldsmid     v.     Tunbridge     Wells 

Com'rs  304 

Goldstein  v.  Foulkes  98 

Goodenow  v.  Tappan  159,  167 

Goodwin  v.  Cheveley  313 

Goodyear  v.  Railroad  274 


XX 


CASES  CITED. 


Page 
Gordon  r.  Cummings    362, 367,  387,  3»8 
V.  Harper  ii4y 

Gorham  v.  Gross     41,  42,  379,  380,  381 
Gorham  Co.  v.  White  272 

Gott  V.  Pulsifer      17,  21,  23,  86,  87,  89, 

181 

Gould  V.  Cayuga  Bank  76 

Graliam  v.  Gautier  340,  342 

V.  Noble  101 

V.  Teat  224 

V.  St.  Charles  R.  Co.  23,  116 

Grainger  v.  Hill    110,  113,  200,  204,  243 

Graves  v.  Dawson  95 

Gray  v.  Durland  140 

V.  James  270 

V.  Northeastern  Ry.  Co.  358 

V.  Russell  281 

Green  v.  Button  22,  88 

V.  Elgie  215 

V.  Sperry  260 

Greenland  v.  Chapin  391 

Gregg  V.  Wynian  393 

Gregory  v.  Brunswick  119 

V.  Hill  194 

V.  Piper  237 

Griffin  V.  Chubb  106,  107 

Griffis  V.  Sellars_  100 

Griffitli  V.  Hanks  74 

Griffiths  V.  Teetgen  135 

Grigsby  v.  Clear  Lake  Water  Co.     307 

Grill  V.  General  Collier  Co.  334 

Grinnell  v.  Wells  137 

Griswold  v.  New  York  R.  Co.  368 

V.  Sedgwick  203 

Gulf  Ry.  Co.  V.  Levy  345 

Gunter  v.  Astor  128. 133 


H. 

Haas  V.  Damon 

Hadley  v.  Clinton  Importing 

Hagelund  r.  Murphy 

Hager  ?".  Grossman 

Hale  V.  Philbrick 

Haley  v.  Case 

Hall  ?•.  Corcoran 

V.  Fearnley 

V.  Hollander 
Halley  ?'.  Mix 

r.  Stanton 
Halliday  v.  National  Tel.  Co. 


Co 


259 

59 

90 

72 

66 

394 

393 

189,  190 

1.36 

204 

167 

379,  380 


Halls  V.  Tiiompson 
Halsey  v.  Brotiierhood 
Hamilton  v.  Boston 

V.  Eno 
Hampton  v.  Brown 


Page 
60,73 
21,87 
393 
182 
228,  252 


Hani's  taengl  v.  Empire  Palace  164 

V.  Newnes  164 

Hankinson  i-.  Bilby  150 

Hanley  v.  California  Bridge  Co.      369 

Hanson  v.  Edgerly  59 

V.  McCue  298 

Hardaker  v.  Idle  District  Council     41, 

42,  379,  381,  382,  399 

Hardcastle   v.  So.  Yorksliire   Ry. 

Co.  359 

Harding  v.  Boston  42,  379,  382 

Hare  v.  Miller  168 

Harper  v.  Suffkin  132 

Harrington  v.  Paterson  73 

V.  Smith  57 

Harris  v.  Brisco  114 

V.  Saunders  254 

V.  Smith  228 

Harrison  v.  Bush  10,  178 

V.  Northeastern  Ry.  Co,  357 

Hart  V.  Aldridge  128,  133 

V.  Cole  357,  362,  367 

V.  Frame  340,  341 

V.  Skinner  260 

Hartshorn  c.  Smith  100 

Harvard  College  v.  Amory  349 

Harvey  v.  Epes  260 

V.  Watson  146 

Hasbrouck  v.  West.  Un.  Tel.  Co.     345 

Hastings  v.  Lusk  165,  166,  168 

Hatch  r.  Lane  174 

Hatliaway  v.  Rice  •  192 

Hauck  V.  Tide  Water  Co.  299 

Hawkins  v.  Hawkins  75 

Hawver  r.  Havvver  152 

Hay  V.  Cohoes  Co.  319 

llayden  v.  Mfg.  Co.  374 

Hayes  v.  Porter  352 

V.  Waldron  296 

Haynes  v.  Clinton  Printing  Co.  152, 161 

V.  Leland  180 

V.  State  193 

Hays  V.  Younglove  109 

Heald  ;;.  Carey  22 

Ilearns  v.  Waterbury  Hospital  35 

Heaven  v.  Pender  366,  399 


CASES  CITED. 


XXI 


Page 

Hebditch  v.  Macllwaine 

10,  172 

,  179 

Heckert's  Appeal 

347 

Hedges  v.  Tagg 

135 

Heermance  v.  James 

143 

Heldt  V.  Webster 

100 

Heller  v.  Pulitzer  Pub.  Co. 

151 

Hellstern  <;.  Katzer 

178 

Helwig  V.  Beckner 

107 

Hemphill's  Estate 

s 

330 

Henderson  v.  Broomhead 

165 

,  167 

Henley  v.  Lyme  Regis 

352 

,  400 

Hennesey  v.  Bingham 

.369 

Henwood  v.  Harrison 

181 

Herbert  v.  Southern  Pac. 

R.  Co. 

393 

Heriot's  Hospital  v.  Ross 

35 

Hess  V.  Oregon  Co. 

100,  104 

,  105 

Hewes  v.  Parkman 

260 

Hewlett  V.  Cruchley 

104 

Heywood  v.  Tillson 

22 

Hibbard  v.  Thompson 

343 

Hibbs  V.  Wilkinson 

89 

Hickman  v.  Griffin 

99 

Hicks  V.  Brantley 

103,  106 

,  107 

Hidy  V.  Murray 

101 

Hilbery  v.  Hatton 

254 

Hill  V.  Bateman 

210 

V.  Taylor 

200 

V.  Yates 

220 

Hiliiard  v.  Richardson 

41,  42 

379 

V.  Wilson 

112 

Hilton  V.  Granville 

283 

Hinton  v.  Dibdin 

334 

Hiort  V.  Bott 

261 

Hoar  V.  Ward 

161 

V.  Wood 

166 

Hobson  V.  Todd 

236 

Hodges  V.  Windham 

147 

Hodgson  V.  Scarlett 

166 

Hogan  V.  Cregan 

139 

Hogg  V.  Ward 

219 

Holbrook  v.  Connor 

64 

Holcomb  V.  Rawlyns 

284 

Holdom  V.  Ayer 

68 

Hole  V.  Barlow 

300 

Holland  v.  Anderson 

75 

HoUenbeck  v.  Hall 

161 

V.  Ristine 

175 

Holley  V.  Mix 

242 

HoUiday  v.  Flolliday 

100, 

103 

Hollins  V.  Fowler 

252 

Holly  V.  Boston  Gas  Co. 

403 

Holmes  v.  Drew 

V.  Mather 

V.  Northeastern  Ry.  Co. 
Hoist  V.  Stewart 
Holt  V.  Parsons 
Honsucle  v.  Ruffin 
Hooper  v.  Lane 

V.  Truscott 
Hoosac  Tunnel  Co.  v.  O'Brien 
Hopkins  v.  Crowe 

V.  Drowne 

V.  Suedaker 

V.  Tanqueray 
Hopper  V.  Reeve 
Houck  V.  Waciiter 
Houlden  v.  Smith 
Houndsell  v.  Smyth 
Houser  v.  Tully 
Hovey  ;•.  Page 
Howard  v.  Crowther 
Howe  V.  Newmarch 
Howland  v.  Day 

V.  Vincent 
Hubbard  v.  Lyman 
Huff  V.  Bennett 
Hughes  V.  Macfie 
Hulett  V.  Swift 
Humphries  v.  Brogden 
HuMiphrys  v.  Stanfield 
Hunt,  Appellant 
Hunting  r.  Russell 
Hurdman  v.  Northeastern  Ry. 
Hutcheson  v.  Peck  143, 

Hutcliins  IK  Hutchins 
Hurtert  v.  Weines 
Hyde  v.  Graham 

V.  Noble 
Hyman  v.  Nye 

I. 

Jill  V.  Forty-second  St.  R.  Co. 
Illick  r.  Flint  R.  Co. 
Ilott  V.  Wilks 
Ilsley  V.  Nicliols 
Indermauer  v.  Dames        337, 

Indianapolis  R.  Co.  v.  Tyng 
Inman  v.  Foster 
Insurance  Co.  v.  Brame 
i;.  Tweed 


Page 

360 

189,  190 

43,  366 

76 

169 

74 

204,  205 

23 

354 

216 

8S 

40 

57 

188 

309 

212 

359 

331 

49 

51 

38 

193 

358 

250 

38 

403 

331 

291 

161 

349 

226 

Co.    302 

144,  145 

120 

152 

238 

249 


405 
369,  374 

355 

2.38,  243 

356,  367, 

371 
58 

180 

198 
48,  397 


xxu 


CASES  CITED. 


lolanthe,  The 
Ireson  v.  rearraan 
Irwin  V.  Dearmaa 
Isaack  v.  Clark 
Israel  v.  Brooks 
Ives  V.  Carter 
V.  Hamilton 


Page 
276 
341 
141 

259 

102 

63 

209 


J. 


Jackson  v.  Adams 

151 

V.  Armstrong 

75 

V.  Sniithson 

310 

James  v.  Campbell 

190 

V.  Hodsden 

66 

Jarmain  v.  Hooper 

214 

Jarnigan  v.  Fleming 

180 

Jaynes  v.  Jaynes 

142, 

154 

Jefferies  v.  Great  West. 

Ry.  Co. 

250 

Jeffrey  v.  Bigelow 

40,71 

Jefts  V.  York 

58,  70,  71 

Jekyll  V.  Moore 

167 

Jenings  v.  Florence 

110 

112 

Jenkins  v.  Fowler 

22 

Jennings  v.  Paine 

166 

Jenoure  v.  Delmege 

10, 

178 

179 

Joannes  v.  Bennett 

10 

177 

178 

Johansen  v.  Davies 

357 

Johnson's  Estate 

349 

Johnson  v.  Brown 

166 

V.  Cliambers 

103 

V.  King 

91 

V.  Smith 

58 

V.  Tompkins 

201 

V.  Wallower 

80 

V.  Wcedman 

260 

r.  West  Chester  Ry 

.Co. 

394 

Joliffc  V.  Baker 

68 

Jones  V.  Andover 

393 

V.  Festiniog  Ry.  Co. 

318 

V.  Morris 

103 

V.  Pearce 

273 

I'.  Read 

289 

V.  Sparrow 

147 

V.  Western  Un.  Tel 

Co. 

34.3 

j;.  Williams 

230 

Jordan  v.  Alabama  R.  C 

0. 

35 

V.  Pickett 

66 

Jordeson  v.  Sutton  Gas 

Co. 

291 

Judson  V.  Cent.  Vt.  R.  Co. 

893 

Justice  V.  Wenden 

264 

K. 


Page 

374 

57 

62 

302 

122 

276 

22 

82 

86 

353 

40 

Co.       313 


Kaare  v.  Troy  Steel  Co. 

Kain  v.  Old 

Karberg's  Case 

Kauffinan  t\  Giesemer 

Keeble  v.  Hickeringill 

Keene  v.  Kimball 

Kelly  V.  Chicago  Ry.  Co. 

Kelsey  v.  Murphy 

Kendall  v.  Stone 

Kennard  v.  Willmore 

Kennedy  v.  McKay 

Kerwhacker  v.  Cleveland  R. 

Kiefer  v.  Rogers  75 

Kilgore  v.  Jordan  33 

Kimball  v.  Harraan  120 

King  V.  Colvin  98 

V.  Eagle  Mills  55 

V.  Kline  245 

Kinney  v.  Gerdes  300,  318 

Kintzing  v.  McElrath  59 

Knight  V.  Gibbs  176 

V.  Legh  228 

V.  Quarles  341 

Kohn  V.  McNulta  374,  375 


Lafayette  R.  Co.  v.  Huffman  402 

Laidlaw  v.  Organ  59 

Lake  ;•.  King  168 

Lamb  v.  Stone  82  ' 

Lambert  v.  Bussey  190,  328 

Lamberton  v.  Dunham  68,  69 

Lambton  v.  Mellish  119 

Lamm  v.  Port  Deposit  Assoc.  68 

Lamphier  v.  Phipos  340,  343 

Lancashire   Wagon   Co.    v.  Fitz- 

hugh  257 

Lancester  Bank  v.  Smith  335 

Landon  v.  Emmons  2-50 

Lane  v.  Boston  &  A.  R.  Co.  334,  335 

V.  Cox  385,  387 

Langford  c.  Boston  R.  Co.  95,  97 
Langridge  c.  Levy 


197,  384.  388,  398, 
899 
Larey  v.  Taliaferro  58 

Lattimore  v.  Simmons  49 

Laughton  r.  Bishop  of  Sodor  174 

Laumer  v.  Francis  302 


CASES   CITED. 


xxm 


Page 

Page 

Law  V.  Grant 

59 

Lumley  v.  Gye    128,  129,  130,  131, 

133, 

Lawler  v,  Hartford  St. 

Ry 

.Co 

393 

134 

142 

Lawrence  v.  Obee 

237 

Lunn  V.  Shermer 

59 

Lea  V.  White 

166 

Luther  v.  Winnisimmet  Co. 

297 

Learoyd  v.  Godfrey 

367 

Lynch  v.  Knight                           142 

154 

Leavitt  v.  Fletcher 

73 

V.  Metropolitan  Ry.  Co. 

38 

Lee  V.  Jones 

60 

V.  Nurdin 

404 

V.  Fearce 

40 

V.  Smith                                  404 

405 

V.  Riley 

\ 

312 

Lyne  v.  Western  Union  Tel.  Co.   28 

,345 

Leland  v.  Tousey 

224 

Lysney  v.  Selby 

64 

Le  Lievre  v.  Gould 

69 

366 

Lytle  V,  Bird 

73 

Lemaitre  v.  Davis 

286 

Lempriere  v.  Lange 

34 

M. 

Leonard  v.  Kinnare 

369 

Leverick  v.  Meigs 

.346 

McAleer  v.  Horsey                         63,  QQ 

Lewis  I'.  Clement 

171 

McAroy  v.  Wright 

79 

V.  Jones 

65 

McAvoy  V.  Medina 

251 

V.  Levy 

171 

McCleary  v.  Frantz 

328 

V.  Terry 

49 

McClellan  v.  Scott 

74 

Ley  man  v.  Latimer 

157 

McCloskey  v.  Fulitzer  Fub.  Co. 

163 

Liford's  case 

234 

236 

McCloughan  v.  Clayton 

222 

Lineoski  v.  Susquehanna  Coal  Co. 

372 

McCombie  v.  Davies 

254 

Linington  v.  Strong 

74 

McCormick  v.  Seymour 

269 

Lipe  V.  Eisenhard 

132 

V.  Talcott 

269 

Lister  v.  Ferryman 

90,  98, 

106 

220 

McDanield  v.  Baca 

86 

Little  V.  Hackett 

402 

McDavitt  V.  Boyer 

166 

Livingston  v.  McDonald 

297, 

303 

McDermott  v.  Union  Credit  Co. 

161 

Lobdell  V.  Baker 

60 

McDonald  v.  Mass.  Hospital 

35 

Lockhart  v.  Lichtenthaler 

402 

V.  Snelling 

47 

Lodge  V.  O'Toole 

155 

Macdougal  v.  Knight 

171 

Loibl  V.  Breidenbach 

152 

McFadden  v.  Robinson 

63 

London  Banking   Co. 

V. 

London 

Macfadzen  v.  Olivant 

244 

Bank 

227 

McFarlan  Carriage  Co.  v.  Fotter 

376 

London  Tramways  Co 

V. 

London 

McGaw  V.  Hamilton 

168 

County  Council 

23 

McGilvray  v.  West  End  St.  Ry. 

38 

Longmeid  v.  Holliday 

399 

McGowan  v.  McGowan 

107 

Loomis  V.  Terry 

312, 

855 

391 

McGuire  v.  Grant 

284 

Loranger  v.  Loranger 

150 

Machin  v.  Geortner 

230 

Lord  V.  Dall 

(') 

Mclntyre  v.  Weinert 

158 

V.  Goddard 

70 

INIackay  v.  Commercial  Bank 

40 

V.  Frice 

248 

McKinney  ik  Smith 

297 

Lord  Advocate  v.  Blantyre 

230 

McLane  v.  Ferkins 

388 

Losee  v.  Buchanan 

315, 

318 

319 

McLaughlin  v.  Cowley 

166 

Louisville  Canal  Co.  v. 

Murphy 

404 

McLeod  V.  Jones 

239 

Louisville  R.  Co.  v.  Brown 

325 

McNelly  v.  Burleigh 

178 

v.Ovv 

325 

McQueen  r.  Fulgham          153,  154, 

155 

Lovejoy  v.  Murray 

260 

Madras  Ry.  Co  v.  The  Zemindar 

317 

V.  Whitcomb 

150 

Mahoney  v.  Dore                         376, 

377 

Lowell  V.  Spaulding     ( 

383, 

386, 387 

388 

Mahurin  v.  Harding                  58,  68,  71 

Lowther  v.  Radnor 

211 

Malachy  v.  Soper 

86 

Lumby  v,  AUday 

158 

Mallory  v.  Leach                            68,  76 

XXIV 


CASES   CITED. 


Page 

Mangan  v.  Atterton  403 

Manley  v.  Field  135 
Manly  Mfg.  Co.  v.  West.  Un.  Tel. 

Co.  345 
Manning  v.  Wells  331 
Manvell  v.  Thomson  141 
Marble  v.  Chapin  152 
Marbury   Lumber   Co.   v.  West- 
brook  406 
Marcus  v.  Bernstein  97 
Marsh  v.  Billings  85 
V.  Ellsworth  166 
Marshall  v.  Cohen  317 
V.  Davis  264 
V.  Melwood  315 
V.  York  &  Newcastle  Ry.  Co.     400 
Marshalsea,  The  210 
Martin  v.  Jordan  68,  75 
V.  Payne  136,  182 
f.  Riddle  302 
V.  Van  Schaick  38 
Martindale  v.  Harris  75 
Marwedel  v.  Cook  387,  388 
Mason  v.  Hill  294 
Mathews  v.  Hursell  228 
Matthews  v.  Beach  171 
Matts  V.  Hawkins  289 
Maund  v.  Monmouthshire  Canal 

Co.  34 

Maxwell  v.  Palmerston  245 

May  V.  Burdett  310,  311 

I'.  West.  Un.  Tel.  Co.  71,  345 

V.  Wood         28,  116,  120,  121,  122, 

130 

Mayhew  v.  Forrester  347 

V.  Herrick  262 

Maynard  v.  Boston  R.  Co.  325,  356, 

359,  384 

Mead  ?•.  Bunn  74 

Medbury  v.  Watson  63,  64 

Mehrhoff  v.  Mehrhoff  142 

Mellin  v.  White  80 

Mellish  L\  Motteux  78 

Mellor  ;•.  Merchants'  Mfg.  Co.          378 

V.  Watkins  239 
Memburj'  v.  Great  Western  Ry.  Co.  324 

Menvil's  Case  235 
Merivale  v.  Carson             165,  181,  182 

Merrifield  v.  Worcester  296,  304 

Merritt  ;•.  Claghorn  331 

V.  Robinson  59 


Mersey  Docks  v.  Gibbs 
Messer  v.  Smith 
Metcalf  V.  Hess 

V.  Times  Pub.  Co. 


Page 

35,  352,  353 

73 

331 

171 


Metropolitan  Bank  v.  Pooley  92,  100 

114 

Meux  V.  Great  East.  Ry.  Co.  197,  399, 

400 

Meyer  v.  Boepple  Co.  394 

V.  Schleichler  156 

Middleton  v.  Nichols  135,  136 

Mikado,  The  276 

Milan,  The  402 

Milhau  V.  Sharp  307 

Millen  v.  Fawdry  240 

Miller  v.  Foley  203 

V.  Hancock  387 

V.  Parish  156 

V.  Proctor  349,  350 

V.  State  192 

Milliken  v.  Long  135 

Millington  v.  Fox  84 

Mills  V.  Armstrong  402 

Milwaukee  Ry.  Co.  v.  Arms  334 

Miner  v.  Gilmour                294,  295,  296 

Mitchell  V.  Crasweller  38 

I'.  Jenkins  107 

Mizner  v.  Kussell  60,  67 

Moebs  V.  Becker  328 

Mogul  Steamship  Co.  v.  McGregor   22, 

23,  35,  118,  119, 120 

Mohney  v.  Cook  892 

Monson  v.  Lathrop  152 

Moorcock,  The  364 

Moore  ?;.  Meagher  154 

V.  Mourge  347 

V.  Robinson  228 

V.  Stevenson  89 

V.  Westervelt  35.3,  854 

Morasse  v.  Brochu  150,  158 

Morehead  v.  Fades  63 

Moreland  v.  Atchison  65 

Morey  v.  Lockwood  269 

Morgan  v.  Booth  166 

V.  Marquis  262 

V.  Ravey  331 

V.  Skiddy  68,  71 

V.  Varick  234 

Morison  i\  Salmon  84 

Morley  Machine  Co  v.  Lancaster    269, 

270 


CASES   CITED. 


XXV 


Page 
Morris  v.  Scott  109 

Morrissey  v.  Telegram  Pub.  Co.       157 
Morrow  v.  Sweeney  357 

V.  Wheeler  &  W.  Mfg.  Co.    92, 100 
Mortin  v.  Shoppee  187 

Morton  v.  Gloster  393 

Mott  V.  Dawson  182 

Mowry  v.  Whitney  267 

Mulligan  v.  New  Britain  329 

Munster  v.  Lamb  165,  166,  167 

M  archie  v.  Black  285 


Murgoo  V.  Cogswell 


246 


Murphy  v.  American  Rubber  Co.     371 

V.  Deane  388,  389,  396 

V.  Moore  95 

V.  Olberding  151,  163 

Murray  v.  Currie  42,  382 

V.  Hall  232 

Myers  v.  Dodd  312 

N. 

Nash  V.  Mosher  264 

National  Tel.  Co.  v.  Baker  315 

Neilson  v.  Jensen  163 

Nelson  v.  Liverpool  Rrewery  Co.     387 
Nevill  V.  Fine  Arts  Ins.  Co.  180 

Newcomb    v.   Boston   Protective 

Dept.  44,  390,  391,  393 

New  England  R.  Co.  v.  Conroy       372, 

373 
New  England  Trust  Co.  v.  Eaton  330 
Newniann  v.  Sylvester  71 

New  World  ;'.  King  39,  334 

New  York  R.  Co.  v.  Schuyler  83 

New  York  &  W.  Tel.  Co.  v.  Dry- 
burg  345 
Nichols  V.  Marslaud  315,  316 
Nicliolson  V.  Coghill  101,  102 
Niosi  V.  Empire  Laundry  398 
Nitroglycerine  Case  190,  328 
Nixon  V.  Jenkins  263 
Noble  V.  White  102 
^ofsinger  v.  Goldman  374 
Nolan  »).  Traber  152 
Norcross  v.  Norcross  331 
Norris  v.  Litchfield  391 
Northampton's  Case  180 
North  Chicago  R.  Co.  v.  Dudgeon  369 
Nortlieastern  Ry.  Co.  v.  Wanless     357, 

395 


Page 

North  Penn.  R.  Co.  v.  Mahoney        404 

North.  Pac.  R.  Co.  v.  Freeman   329,  393 

V.  Poirier  371 

Noyes  v.  Lovering  71 


O. 

Oakes  v.  Spaulding 
O'Brien  v.  Barry 

V.  Times  Pub.  Co. 
O'Callahan  v.  Cronan 
Odionie  v.  Winkley 
O'Donoghue  v.  Hussey 
Ogburn  V.  Connor 


310 

91,94 

150 

120 
269 
175 
302 


Ohio  Southern  R.  Co.  v.  Morey       379, 

380,  381 
Oliver  v.  Pate  105 

Olmstead  v.  Partridge  103 

Olmsted  v.  Miller  154 

O'Maley  y.  So.  Boston  Gaslight 

Co.  368,  373,  374,  376 

O'Neal  V.  Chicago  Ry.  Co.  374 

V.  McKinna  103,  104,  107 

Onslow  V.  Home  160,  161 

Oppenheim  v.  White  Lion  Hotel 

Co.  331,  332 

O'Reilly  v.  Morse  267,  269 

O'Riley  v.  McCheeney  304 

O'Rourke  r.  Sun  Pub.  Co.  179 

Osborn  v.  Gillett  198 

Osborne  v.  Chocqurel  310 

V.  London  Ry.  Co.  377 

Osgood  c.  Lynn  R.  Co.  304 

Outcalt  V.  Durling  249 

Overend  v.  Gibb  850,  351 

Overton  v.  Freeman  42,  382 

Oviatt  V.  Sage  262 

Owen  V.  Henman  306 


Paddock  v.  Strobridge 

60 

Page  V.  Parker 

03 

V.  Robinson 

229 

V.  State 

193 

Paine  v.  Chandler 

22 

Palmer  v.  Concord 

182 

Pangburn  ?>.  Bull 

106 

Panton  v.  Williams 

98,  106 

Pappa  V.  Rose 

854 

XXVI 


CASES   CITED. 


Page 

Parharn  r.  Randolph 

75 

Paris  t'.  Levy 

89 

Park  r.  Hammond 

347 

Parker  v.  Barnard 

367,  368 

V.  Farley 

92,  95,  100 

V.  Ha  worth 

273 

V.  Huntington 

120 

I'.  Parker 

103 

Parsons  v.  Webb 

264 

Parton  v.  Prang 

276 

Partridge  v.  Gilbert 

289 

V.  Scott 

285 

Pasley  v.  Preeman       55, 

64,  79,  80,  81 

Pater  v.  Baker 

86 

Patterson  i".  Kirkland 

59 

Pattison  v.  Jones         175,  176,  177,  179 

Payne  v.  Western  R.  Co.  22 

Payson  v.  Caswell  94 

Peake  v.  Oldham  151 

Peard  i'.  Jones  159 

Pearsall  (-•.  West.  Un.  Tel.  Co.          343 

Pearse  v.  Coker  234 

Pease  v.  Chaytor  211 

Peek  V.  Gurney  59,  67,  83 

Penn  v.  Preston  230,  231 

Penna.  R.  Co.  v.  Vandiver  38 

Penny  t\  Wimbledon  Uist.  Council     42 

Penruddock's  Case  240,  241 

People  V.  Hubbard  238 

People's  Bank  v.  Bogart  59 

Perceval  v.  Phipps  277,  282 

Percy  v.  Millaudon  351 

Perham  v.  Coney  259 

Perry  v.  Phipps  246 

Peyton  v.  London  288 

Phillips  V.  Homfray  50,  197 

V.  Nay  lor  110 

Philp  V.  Squire  144 

Piiilpot  V.  Lucas  92,  100,  101 

Philpott  V.  Kelley  258 

Pickard  r.  Sears  259 

Pickering  v.  Dowson  78 

Piper  V.  Manny  331 

Pippet  '.'.  Hearn  109 

Pitt  V.  Donovan  88 

V.  Petway  262,  263 

Pitts  (!.  Wcmple  270 
Pittsburgh  K.  Co.  v.  Devinney    371,  372 

V.  Vining  403 

Pixley  V.  Clark  319 

Plant  V.  Woods  23, 116,  121 


Page 
Playford  v.  United  Kingdom  Tel. 

Co.  343,  345 

Plummer  v.  Dill  362,  388 

Polhill  V.  Walter  80,  81 

Pollard  V.  Lyon  155 

V.  Photographic  Co.  164 

Policy  V.  Lenox  Iron  Works  261 

Pouting  V.  Noakes  315 

Pool  V.  Lewis  296 

Pope  V.  Pollock  91 

Popplewell  ?'.  Hodkinson  291 

V.  Pierce  310 

Post  ('.  Union  Bank  25G 
Powell  V.  Birmingham  Vinegar  Co.     85 

V.  Evans  349 

Powers  V.  New  York  R.  Co.  375 

V.  Powers  148 

Powlowski  V.  Jenks  103 

Pratt  V.  Gardiner  354 

Presby  v.  Parker  40 

JVcscott  )'.  Wright  59 

Proctor  V.  Webster  168 

Pugh  V.  London  Ry.  Co.  '   153 

Pursell  V.  Horn  189 

Tuterbaugh  v.  Reasor  402 

Putnam  v.  Payne  245 

Pym  ;-.  Great  North.  Ry.  Co.  197 

Q. 

Quartz  Hill  Mining  Co.  v.  Eyre    91, 108 

Quimby  v.  Boston  R.  Co.  368 


R. 


Radcliff  V.  Brooklyn  284 

Radley  v.  London  &  Northwestern 

Ry.  Co.  395 

Ragon  V.  Toledo  R.  Co.  374 

Railroad  v.  Delaney  152 

Railroad  Co.  v.  Houston  330,  393 

Railway  v.  Shields  369 

Ramsey  v.  Arrott  98 

Randall  i'.  Hazelton  120 

Randeli  v.  Trimen  68,  71 

Rapier  v.  London  Tramways  Co.     299, 

305 
Rapson  v.  Cubitt  42,  382 

Ratcliffe  v.  Evans  27,  84,  133 

Ravenga  r.  Mackintosh  104 

Rawstron  v.  Taylor  297 


CASES  CITED. 


XXVU 


Kaymond  v.  Andrews 
Rayner  v.  Mitchell 
Rea  V.  Tucker 
Read  v.  Edwards 
Reading's  Case 
Reading  v.  Royston 
Reck  V.  Stitzel 
Reddaway  v.  Banliam 


Page 
224 

38 
147 
312 
231 
225 
156 

84 


V.  Bentham   Hemp-spinning    ^ 

Co.  84,  275 

Reddie  v.  Scoolt  141 

Redgrave  v.  Hurd  68,  74 

Reese  Mining  Co.  v.  Smith  68 

Reg.  V.  Ashwell  227,  228 

V.  Clarke  140 

V.  Cotesworth  189 

V.  Duckworth  185 

i\  James  185 

V.  Saddlers'  Co.  76 

V.  St.  George  185 

V.  Veley  175 

Reid  V.  Prov.  Journal  Co.  150 

Rex  V.  Abingdon  168 

V.  Burdett  163 

V.  Creevey  168 

Reynell  r.  Sprye  66,  74 

Reynolds  v.  Kennedy  101 

Rhobidas  v.  Concord  35,  352 

Rhode  V.  Alley  60,  75 

V.  Annis  75 

Rice  V.  Albee  22,  23,  116,  117,  121, 

123,  130 

V.  Coolidge  166 

V.  King  Philip  Mills  370 

1-.  Manley  132 

V.  Stone  51 

Rich  V.  N.  Y.  Cent.  R.  Co.  120 

V.  Pierpont  342 

Richards  v.  Jenkins  292 

V.  Rose  287 

Richardson  v.  Silvester  83 

Richart  v.  Scott  285 

Richmond  v.  Loeb  150 

Richter  v.  Koster  100 

Rideout  v.  Knox  22 

Rider  v.  Kite  95 

Riley  v.  Home  336 

Rist  V.  Faux  137 

Ritchey  t--.  \Yest  343 

Ritchie  v.  Widdemer  160 

Robbing  V.  Springfield  St.  Ry.  Co.    393 


Roberts  r.  Connelly 

V.  Smith 

V.  Wyatt 
Robertson  v.  Edelstein 
Robinson  v.  Glass 

V.  May 
Roclie  V.  Sawyer 
Rockwell  V.  Proctor 
Rodgers  v.  Nowill 
Rogers  v.  Arnold 


Page 
140 
369 
250 
150 

75 
173 
887 
331 

84 
250 


V.  Kennebec  Steamboat  Co.       368 

Rohan  v.  Sawin  218,  220 

Root  V.  King  182 

Rose  V.  Miles  807,  308 

Ross  V.  Fedden  317 

Rowbotham  v.  Wilson  283 

Rowley  v.  Rice  242 

Roworth  V.  Wilkes  279 

Rudder  v.  Gerdes  300,  318 

Rush  v.  Cavenaugh  159 

Russell  V.  Tillotson  394 

Rutherford  v.  Williams  81 
Rylands  v.  Fletcher    303,  315,  316,  319 


Safford  v.  Grant  63,  66 
St.  Helen's  Smelting  Co.  v.  Tip- 
ping 301,  302 
St.  Louis  Ry.  Co.  v.  Touhey  373 
Salem  Rubber  Co.  v.  Adams  74 
Sampson  r.  Henry  238,  239 

V.  Hoddnott  293,  294 

Sanborn  v.  Neilson  147,  148 

Sandell  v.  Sherman  104 

Sankey  r.  Alexander  74 

Sans  V.  Joerris  180 

Sargent  v. 140 

V.  Gile  256 

Saunders  v.  Smith  278 

Savacool  v.  Boughton  209 

Savage  r.  Brewer  17,  111 

1-.  Waltliew  348 

Savill  V.  Roberts  97 

Sawin  V.  Guild  273,  274 

Sayles  v.  Briggs  93,  95 

Scanlon  r.  Wedger  328 

Sclineider  v.  Heath  78 
Scliofieid  v.  Chicago,  Mil.  &  St. 

Paul  n.  330 
Scholfield  Pulley  Co.  v.  Scholfield      69 

Schrieve  v.  Stokes  286 


xxvni 


CASES   CITED. 


Page 

Schrnj'er  r.  Lj'nch  353 

Schubert  r.  Clark  398 

Sohuclihardt  v.  Allen  70 

Schultan  v.  Bavarian  Brewing  Co.     117, 

119,  120 

Schuneman  v.  Palmer  145,  146 

Schurick  v.  Kollman  150,  155 

Scluiylkill  r.  Copley  75 

Scliwenk  v.  Naylor  74 

Scott  V.  Ely  203 

V.  Shepherd  45,  398 

V.  Stansfield  165 
Scrihner  v.  Beach        191,  193,  194,  238 

Scripps  V.  Reilly  89 

Scabridge  v.  McAdam  104 

Seaman  v.  Bigg  160 

V.  Netherclift  165,  166,  175 

Seaver  v.  Adams  142 

Seeley  v.  Brush  295 

Seton  V.  Lafone  58,  71 

Severin  v.  Keppell  264 

Seward  v.  The  Vera  Cruz  197 

Shafter  v.  Wilson  283,  284 

Sliarp  r.  Powell  47 

Shaul  V.  Brown  109 

Shaw  V.  Berry  331 

V.  Boston  &  A.  R.  Co.  307 

Shay  V.  Thompson  10 

Sheckell  v.  Jackson  11,  172 

Shechan  v.  Sturges  192 

SheffiU  V.  Van  Deusen  152 

Shelfer  v.  Gooding  165 
Shclton  V.  Lake  Shore  Ry.  Co.        239 

Shergold  v.  Hollo  way  207 

Sherry  v.  Picken  264 

Shipley  v.  Fifty  Associates  315,  318 

Shipper  r.  Bowen  70 

Shook  ('.  Rankin  282 

Shorland  v.  Govett  242 

Short  '•.  Spragins  100 

Sibley  r.  Aldrich  331 

Sievers  r.  Peters  Box  Co.  373 

Simmons  v.  Lillystone  262 

V.  Mitchell  150 

Sims  V.  American  Tel.  Co.  70 

V.  Eiland  68 

Sinclair  v.  Eldred  102 

Singer  Mach.  Co.  v.  Wilson  84 

Singleton  v.  Bolton  84 
Six  Oar].cnters'  Case    2.39,242,  243,  244 

Slaughter  v.  Gerson  73 


Page 

Sledge  V.  Scott 

57,68 

Smith  V.  Ashley 

162 

V.  Baker 

325 

V.  Chadwick 

61,  64,  81 

V.  Countryman 

59 

V.  Higgins 

173 

V.  Hughes 

59 

V.  Johnson 

163 

V.  Kenrick 

316 

V.  Land  &  House 

Corp. 

35,  38,  62, 

67,  74,  76,  77 

V.  London  Docks  Co.  43,  366 

V.  Midland  Ry.  Co.  306 

V.  O'Hara  297 

V.  Sherman  49 

V.  Smith  156,  402 

V.  Southwestern  Ry.  Co.  46,  397 

V.  Stewart  157 

V.  Sydney  213 

V.  Tett  234 

V.  Thackerah  286 

V.  Utley  38 

Smith  Mfg.  Co.  v.  Sprague  273 

Snow  V.  Allen  104 

Solomon  /-.  Vintners'  Co.  288 

Somers  v.  Richards  63 

Sommer  o.  Wilt  17,  111,  112,  253 

South  V.  Denniston  140 

Southcote  V.  Stanley   356,  357, 363,  384 

Southern  Ry.  Co.  v.  Bush  325 

South  Staffordshire  Water  Co.  v. 

Sherman  251 
Southwest   Improvement    Co.   v. 

Andrew  369 
Spade  V.  Lynn  R.  Co.    28,  153,  185,  190 

Spalding  V.  Vilas  31,  169 

Spangler  c.  Chapman  68 

Sparhawk  v.  Union  Ry.  Co.  306 

Speed  V.  HoUingsworth  76 

Speight  V.  Oliviera  10,  136 

Spengler  v.  Davy  111 

Springfield  i-.  Harris  296 

Staltder  (».  Huntington  374 

Standard  Bank  v.  Stokes  289 

Stanley  v.  Gaylord  264 

V.  McGauran  74,  75 
V.  Powell                      190,  328,  398 

Stark  V.  Chitwood  86 

Starr  c  Jackson  228 

State  r   Bierce  134 

V.  Dixon  193 


CASES  CITED, 


XXIX 


Page 

State  V.  Taylor 

186 

Stebbins  v.  Palmer 

49,  50 

Stedman  v.  Smith 

290 

Steele  i'.  Brannon 

170 

V.  Southwick 

162 

Stephens  v.  Baird 

259 

V.  Koonce 

260 

V.  Myers 

187 

V.  Wilkins 

207 

Stevens  v.  Hartwell 

"180 

V.  Sampson 

170 

Stevenson  v.  Newnham 

22 

Stewart  v.  Cole 

111,  253 

V.  Ripon 

46,47 

Stitzell  V.  Reynolds 

151 

Stockdale  v.  Hansard 

168 

Stone  V.  Boston  R.  Co. 

51 

V.  Stevens 

109 

Storey  v.  Ashton 

38 

V.  Wallace 

166 

Storrs  V.  Utica 

43 

Story  V.  Holcombe 

281 

Stowe  V.  Thomas 

282 

Strauss  v.  Francis 

89,  181 

Strehlow  v.  Pettit 

93 

Strickland  v.  Parker 

262 

Stroebel  v.  Whitney 

151 

Strong  V.  Strong 

76 

Stroyan  y.  Knowles 

285 

Stubbs  V.  Johnson 

62,63 

Sturges  V.  Theological 

Education 

Soc. 

42,  379 

Suggs  V.  Anderson  191 

Sullivan  v.  Stratham  Co.  178 

V.  Union  Pac.  R.  Co.  198 

Sutton  V.  Huffman  132,  137 

V.  Johnstone  101 

V.  Wauwatosa  392 

Swain  v.  Mizner  238 

V.  Stafford  99 

Sweeney  v.  Baker  182 

V.  Perney  102 

Sweeny  v.  Old  Colony  R.  Co.  357, 

360,  361,  362,  395 

Sweet  V.  Benning  278 

V.  Sweet  278 

Swett  V.  Cutts  23,  298 

Swift  V.  Winterbotham  83 

V.  Witchard  110 

Sykes  v.  Dixon  132 

V.  Sykes  84,  85 


Page 
359 
264 
355 
207,  209 
186 


T. 

Taft  V.  New  York  R.  Co. 
Talmadge  v.  Scudder 
Talmage  v.  Smith 
Tarlton  v.  Fisher 
Tarver  v.  State 
Taylor  i'.  Manchester  Ry.  Co.    197,  400 
r.  Neri  127,  128,  1-34 

Tebbutt  V.  Bristol  &  E.  Ry.  Co.       367 
Telegraph  Co.  v.  Mellon  28,  345 

Telephone  Cases  267 

Tellefsen  v.  Fee  208 

Temperton  v.  Russell     16,  23,  116,  119, 

129,  130 
Tenny     v.     Wimbledon      District 

Council  379 

Terre  Haute  R.  Co.  v.  Mason  103 

Terry  c.  Hutchinson  137 

Terwilliger  v.  Wands  28,  153,  154 

Te.xarkana  Ry.  Co.  v.  Anderson   28, 388 
Texas  R.  Co.  v.  Archibauld  369 

Tharsis  Sulphur  Co.  v.  Loftus  354 

The  Bernina  402,  403,  405 

The  Bywell  Castle  394 

The  Franconia  197 

The  lolanthe  Case  276 

The  Marshalsea  210 

The  Mikado  Case  276 

The  Milan  402 

The  Moorcock  364 

The  New  World  334 

Thickstun  v.  Howard  331 

Thomas  v.  Churton  167 

V.  Quartermaine  371,  372,  374 

V.  Winchester        49,  131,  197,  398 
Thompson  v.  Beacon  Rubber  Co.  99,100 
V.  Rose  265 

V.  Shackell  181 

V.  Sun  Pub.  Co.  150 

Thorley  v.  Kerry  161,  162 

Thorogood  v.  Bryan  402 

V.  Robinson  262 

Thorpe  v.  Brumfitt  119 

Thrussell  v.  Handyside  366 

Thurston  v.  Hancock  284,  285 

Tickell  V.  Read  194 

Tierney  v.  Frazier  208 

Tilghman  v.  Proctor  267 

Tillett  V.  Ward  313 

Timm  v.  Bear  296 

Timothy  v.  Simpson  221,  222 


XXX 


CASES  CITED. 


Page 

Todd  V.  Flight  387 

Tolle  V.  Correth  296 

Tompkins  r.  Halleck  276 

Toothaker  v.  Conant  178 

Tootle  V.  Clifton  302,  303 
Torsch  V.  Dell  98,  106,  107 
Toy  V.  U.  S.  Cartridge  Co.        369,  370 

Trade  Mark  Cases  276 

Trebiicock  i\  Anderson  165,  160 

Trudo  V.  Anderson  264 

True  V.  International  Tel.  Co.  344 

Trusler  v.  Murray  280 

Tuberville  i'.  Savage  186 

Tuck  V.  Downing  72 
Tufff.  Warman                  394,395,396 

Tullidge  V.  Wade  244 

Tunstall  v.  Christian  285,  286 

Turner  v.  Ambler  97,  106 

V.  Harvey  59 

V.  Sullivan  170 

Turpin  v.  Remy  109 

Twaddle's  Appeal  349 

Tyler  v.  Boston  272 

u. 

Uggla  V.  West  End  Ry.  Co.  329 

Ullee,  In  re  140 

Underbill  v.  Welton  151,  155 

Underwood  v.  Waldron  319 

Upton  V.  Tribilcock  65 

Usill  V.  Hales  171 

V. 

Van  Arnan  v.  Ayres 
Van  Brunt  v.  Schenck 
Vance  i\  Erie  Ry.  Co. 
Vandenburgh  ?'.  Truax 
Vanderbilt  i'.  Mathias 


142 
234 
35,  38 
47 
90,  93,  103, 
106,  107 
63 


Van  Epps  i'.  Harrison 

Van  Horn  v.  Van  Horn 

Van  Wyck  v.  Aspinwall 

Vaughan  v.  Taff  Vale  Ry.  Co.    317 

Venard  v.  Cross 

Vernon  v.  Keys 

Victorian  Rys.  Comm'rs  v.  Coultas 

Vincent  v.  Cornell 

V.  Stinehour 
Vitzetelly  v.  Mudie's  Library 


120 
174 
,318 
309 
73 
28, 
153 
256 
190 
152 


w. 

Page 
Wabash  R.  Co.  v.  Ray  374 

Wachsmuth  v.  Merchants'  Bank      165, 

169 
Wadsworth  v.  Western  Un.  Tel. 

Co.  345 

Wait  V.  Richardson  233 

Waite  V.  Northeastern  Ry.  Co.   403,  405 
Wakefield  v.  Buccleugh  283 

Wakeman  v.  Robinson  190 

Walker  v.  British  Guarantee  Assoc.  348 
V.  Cronin        23,  116,  121,  129,  130, 

133 

Wallace  v.  Jameson  182 

Walter  v.  Lane  276,  277 

V.  Sample  105 

V.  Selfe  305,  306 

369 

151 

95 

Co.  330 

142,  154 

R.  28,  153 

168 


Walton  V.  Potter 
Ward  V.  Clark 

V.  Reasor 
Warner  v.  Baltimore  R. 

V.  Miller 
Warren  v.  Boston  &  M. 
Wason,  Ex  parte 


Walter 


168,  170,  173,  175 
Miller 


Waterbury  Brass  Co.  v. 
Watkin  v.  Hall 
Watson  V.  Gray 

V.  McCarthy 
Weaver  v.  Eureka  Lake  Co 

V.  Ward 
Webb  V.  Beavan 

V.  Hill 
Webber  v.  Closson 
Weber  v.  Weber 
Webster  v.  Bailey 

V.  Hudson  River  R.  Co. 
Weedon  v.  Timbrell 
Weeks  v.  Currier 
Welch  V.  Cheek 
Weld  V.  Oliver 
Welfare  v.  London  &  B.  Ry. 
Wenger  i\  Phillips 
Wenham  v.  Ash 
Weniihak  v.  Morgan 
Wesson  v.  Washburn  Iron  Co. 
West  i>.  Nibbs 

V.  Wright 
West  End  Co.  i-.  Claiborne 
Western  Bank  v.  Addie  40, 

Western  R.  Co.  v.  Rogers 


270 

180 

288 

157 

297 

189,  190,  328 

150,  155 

102 

312 

74 

78 

402 

146 

69 

95,97 

262 

363 

105 

152 

152 

307, 308 

243 

74 

73,74 

71,  76 

404 


Co 


CASES   CITED. 


XXXI 


Page 

Page 

Western  Un.  Tel.  Co.  i 

.  Carew 

343,  344 

Wilson,  Ex  parte 

155 

V.  Cliamblee 

343,  344 

V.  Brett 

334 

Westlake  i-.  Westlake 

142 

V.  Goit 

28 

153 

West  London  Bank  v. 

Kitson 

65 

V.  New  Bedford 

298, 

318, 

319 

Weston  V.  Arnold 

288 

V.  Newberry 

317 

Whalley  v.  Lancashire 

Ry.  Co 

302 

V.  Nichols 

63 

Wheatley  v.  Baugh 

23 

V.  Noonan 

152 

V.  Chrisman 

293,  304 

V.  Read 

262 

Wlieatly  v.  Harris 

245 

Wilton  V.  Webster 

146 

148 

Wheaton  v.  Peters 

277,^278 

Winans  v.  Randolph 

328 

Wheelden  v.  Lowell 

239 

Winsmore  v.  Greenbank 

131 

144 

145 

Wheldon  v.  Cliappel 

393 

Winter  v.  Henn 

139 

Whistler  v.  Iluskia 

181 

Winterbottom  v.  Derby 

809 

White  ;'.  Brooks 

262 

V.  Wright 

899 

V.  Carroll 

166 

Wolf  V.  Western  Un.  Tel. 

Co. 

344 

V.  Demary 

265 

Wolfe  V.  Door 

353 

V.  Duggan 

28 

Wood  V.  Clapp 

343 

V.  Garden 

255 

V.  Cooper 

847 

V.  Madison 

58,  70,  71 

V.  Leadbitter 

238 

V.  Sawyer 

40 

V.  Wand 

295 

V.  Witteman  Litho 

graphic 

Co.   374 

Woodman  v.  Hubbard 

393 

Whitehead  r.  Greetliam 

341 

Woodson  V.  Johnson 

373 

Whiting  V.  Hill 

72 

Woodward  v.  Morrison 

272 

V.  Price 

62,  74,  76 

Woolf  V.  Chalker 

245, 

355 

Whitman  Mining  Co. 

V.  Tritle 

264 

Worcester  y.  Marchant 

140 

Whitney  v.  Allaire 

76 

Wren  v.  Weild              17, 

21,  22,  87,  88 

V.  Boardman 

78 

Wright  V.  Court 

204 

V.  Peckham 

100 

V.  Maiden  R.  Co. 

403 

Wliittemore  v.  Cutter 

273 

Wyatt  V.  Buell 

166 

Wieland  v.  Kobick 

33 

Wyndham  v.  Wycombe 

147 

Wiggins  V.  Hathaway 

353 

Wilcox  V.  Moore 

182 

Y. 

Wilder  V.  De  Cou 

65 

Wilkins  v.  Aiken    - 

279 

Yale  V.  Saunders 

260 

i;.  Earle 

331 

Yarmouth  v.  France 

368 

Wilkinson  v.  Fairrie 

366 

Yates  V.  Lansing 

354 

V.  Haygarth 

232 

Youmons  v.  Smith 

155 

166 

V.  Proud 

291 

Young  i\  Miller 

156 

Willans  v.  Taylor 

103 

York  V.  Pease 

169 

William  v.  Norwood 

101 

York  &  No.  Midland  Ry 

.  Co 

.    V. 

Williams  v.  Casebeer 

103, 

105,  106 

Hudson 

351 

V.  Chadbourne 

262 

Young  V.  Spencer 

229 

v.  Esling 

236,  237 

V.  Great  Western 

Ry.  Co. 

357 

z. 

V.  Hill 

6,  1.54 

V.  Smith 

213,214 

ZelifFv.  Jennings 

156 

V.  Spurr 

59 

Zinn  V.  Rice                    17, 

110, 

Ill 

,112 

Wilmarth  v.  Burt 

208 

Zoebisch  v.  Tarbell 

365 

GENERAL   PART. 


GENERAL  THEORY  AND  DOCTRINE. 


THE    LAW   OF   TORTS. 


GENERAL    THEORY 

J*. 


AND    DOCTRINE. 


/fy^^^^l.     Of  Legal  Right:  Domain  of  Tort. 

1.  The  sphere  of  action  of  a  citizen,  in  liis  relation  to  the 
law,  is  found  in  his  rights,  privileges  in  the  sense  of  permis- 
sions, and  duties.     What  a  citizen  may  lawfully  ^.^^      .^._ 
do  is  determined  by  his  legal  rights  and  privi-  lege,  and 
leges ;  what  he  must  do  is  determined  by  his  legal    ^*^' 
duties.     These  duties  however  only  correspond  to  the  rights 
and  privileges  of  others ;  hence  a  man's  rights  and  privileges, 
limited  as  they  are  by  like  rights  and  privileges  in  others, 
juristically  express  the  extent  of  his  sphere  of  action  as  a 
citizen  under  municipal  law.     But  it  will  be  found  important 
to  consider  duties  independently,  in  any  endeavor  to  state  the 
law  of  torts;  indeed  it  would  be  fairly  out  of  the  question  to 
state  the  law  adequately  and  clearly  in  terms  of  legal  right. 

2.  It  is  of  first  importance  then  to  get  a  clear  conception 
of  the  meaning  in  law  of  right,  privilege,  and  duty,  as  these 
terms  are  employed  in  the  foregoing  paragraph.  Legal  right 
The  general  notion  of  the  first  may  be  put  thus :  explained. 
In  legal  rights  lie  ordinarily  one's  positive  powers, ^  as  a  pos- 
session in  hand  with  which  to  set  the  law  in  motion  against 
one's  neighbor  upon  occasion;  in  other  words,  legal  rights 
ordinarily  furnish  ground  upon  which  one  man  may  have 
an  action  against  another. ^ 

1  The  rights  conferred  upon  corporations  are  indeed  commonly  called 
powers.     Rights  often  appear  under  the  name  of  powers. 

2  Sometimes  the  infringement  of  a  legal  right  may  not  give  an  action, 
as  for  instance  infringement  of  the  legal  right  of  a  person  on  trial  for 


4  LA^y  OF  TORTS.  [Sect.  1. 

3.  It  should  however  be  observed  that  the  term  *  right '  is 
occasionally  used  in  law  books  (as  well  as  in  popular  speech) 
in  a  broad  and  rather  loose  sense  which  makes  it  include 
privilege.  Thus,  even  in  the  use  of  legal  language,  a  person 
will  sometimes  say  that  he  had  a  '  right '  to  be  upon  certain 
premises  on  a  certain  occasion  because  he  was  allowed  by  the 
owner  or  by  the  law  to  go  there ;  the  case  not  requiring,  it 
may  be,  any  exact  statement  of  the  situation.  The  truth  is, 
that  the  person  was  there,  not  by  right,  not  as  having  posi- 
tive powers  under  which  he  could  sue  the  owner;  he  was 
there  only  by  permission,  ^  so  that  no  suit  could  be  brought 
against  him  for  being  there.  This  use  of  the  term  '  right ' 
must  then  be  set  aside  as  embraced  under  the  term  '  privi- 
lege,' to  be  considered  presently,  and  the  term  'right'  con- 
sidered in  its  proper  sense. 

4.  In  its  proper  sense,  as  importing  active  powers,  right, 
apart  perhaps  from  a  class  of  cases  to  be  spoken  of  later, 
signifies  the  control  or  the  authority  of  the  will  over  some 
object  tangible  or  intangible.  When  an  object  is  not  within 
the  control  or  the  authority  of  my  will,  as  in  the  case  of  light 
and  air,  or  the  free  fish  in  a  stream,  though  the  stream  run 
through  my  land,  then  (apart  from  the  special  cases)  I  have 
no  right,  in  the  legal  sense,  to  or  over  that  object.  I  may 
have  a  right  in  respect  of  it,  as  where  I  have  a  contract  in 
virtue  of  which  a  house  may  sometime  become  mine,  and  for 
some  special  purposes  in  equity  I  may  be  considered  to  have 
a  right  over  the  house;  but  in  the  generally  accepted  and 
proper  sense  of  the  word  I  have  no  legal  right  to  or  over  it. 
The  house  is  not  mine  in  whole  or  in  part;  my  'right'  is 
over  the  vendor  only. 

5.  It  should  however  be  observed  that  conduct  may  be 
'  rightful '  in  the  legal  sense,  though  it  may  not  be  of  legal 
right.      The  term  '  rightful '  imports  in  law  no  more  than 

crime,  before  the  petit  jury,  to  have  the  prosecution  carried  forward  to 
a  verdict.     But  the  law  will  always  give  effect  to  the  right  in  some  way; 
in  the  case  just  put  the  infringement  works  an  acquittal  of  the  prisoner. 
See  Commonwealth  v.  Tuck,  20  Pick.  356,  365. 
*  Or  '  license,'  in  technical  language. 


Sect.  1.]  GENERAL  THEORY  AND  DOCTRINE.  5 

that  the  act  or  omission  need  not  be  '  justified, '  that  is,  that 
it  is  not  even  presumptively  wrongful.     Conduct  .  Biehtfui ' 
therefore  is  '  rightful '   when  it  is  permitted  or  distinguished 
privileged,  though  but  conditionally  or  not  of  full    ^°^   ^^^    ' 
right.     Thus  it  is  '  rightful '  to   prosecute   a   man    without 
reasonable  or  probable  cause;    not,  as  will   appear  later,  in 
the  sense  that  the  prosecutor  has  a  legal  right  to  do  so,  but 
in  the  sense  that  he  will  not  have  to  '  justify '  such  an  act 
if   afterwards  sued   for  it.     The   act   is    not   presumptively 
unlawful;  other  facts  must  be  added  to  make  it  so, — with- 
out them  the  prosecution  is  permitted  or  privileged. ^ 

6.  In  regard  to  legal  right  as  above  described,  an  object  is 
within  the  control  of  my  will  when  I  have  full  power  over  it. 
It  may  or  may  not  be  in  my  hands  or  within  my  control  and 
reach;  enough  still  that  there  is  nothing  to  pre-  authority, 
vent  my  exercising  control  over  it  at  will,  so  far  as  any 
interference  of  others  is  concerned.  An  object  is  within 
the  authority,  as  distinguished  from  the  control,  of  my  will 
when  I  am  wrongfully  deprived,  in  whole  or  in  part,  of  my 
control  over  it  without  losing  title  to  it,  as  for  example 
when  my  horse  is  stolen  or  otherwise  wrongfully  taken  or 
withheld  from  my  proper  control.  And  anything  may  be 
within  the  control  or  the  authority  of  my  will  which  is  the 
means  whereby  I  am  to  acquire  legal  rights.  The  means 
must  be  commensurate  with  the  end.  I  have  a  legal  right 
to  a  livelihood;  hence  I  have  a  legal  right  to  all  reasonable 
means  to  obtain  it;  I  have  a  legal  right  to  a  good  name; 
I  have  a  legal  right  to  seek  contracts,  to  enter  into  busi- 
ness, to  pursue  studies,  to  bring  suits  and  prosecutions,  to 
attach  property,  —  to  do  or  refrain  from  doing  a  thousand 
things  suitable  to  the  end  of  obtaining  a  livelihood. 

7.  In  certain  cases  the  judges  have  found  it  desirable  to 
extend  the  meaning  of  the  term  '  right '  beyond  its  more 
obvious  and  unstudied  sense  as  above  given ;  they  have  de- 

^  So  it  should  be  noticed  '  wrongful '  does  not  necessarily  import  a 
wrong  in  the  legal  sense,  but  only  something  helping  to  make  a  wrong; 
as  for  instance  a  false  representation. 


6  LAW  OF  TORTS.  [Sect.  1. 

clared  the  existence  of  a  class  of  legal  rights  over  objects  not 
fully  and  for  all  purposes  within  the  control  or  the  authority 
Extension  of     of  one's  will,  the  rights  being  such  against  wrong- 

KS^H^hf-  ^^^^^^  ^^^^y-  ^^  ^^^'^^  ^^'^^^  ^^®  Tights  to  the  en- 
gratuity,  joyment  of  a  gratuity,  such  as  the  benefit  of  a 
life  insurance  policy  kept  up  on  one's  own  life  for  one's 
sister,  at  the  sole  expense  of  the  insured,  ^  or  the  benefit  of 
another's  gratuitous  hospitality,^  or  of  a  license.  There  may 
be  other  instances  of  legal  rights  of  like  or  other  special 
nature. 

8.  These  special  cases  are  explainable  as  resting  upon  suffi- 
cient grounds,  even  if  they  are  not  to  be  deemed  as  relating 
to  objects  virtually  within  the  authority  of  the  will.  Indeed 
it  seems  fair  to  say  that  towards  one  interfering,  without  just 
cause  or  excuse,  in  the  enjoyment  of  a  bounty  by  another, 
the  bounty,  as  it  is  'being  received,  is  within  the  control 
of  the  will  of  the  person  receiving  it,  and  towards  the  same 
person  the  continuance  of  the  bounty,  so  far  as  it  is  likely 
to  continue  if  unhindered,  is  within  the  authority  of  his  will. 
On  the  whole  it  appears  reasonable  to  say,  of  all  this  special 
class  of  cases,  that  the  wrong  consists  in  unjustifiable  inter- 
ference with  the  natural  and  proper  exercise  of  the  will ;  that 
is,  that  such  exercise  of  the  will,  speaking  generally,  falls 
within  the  technical  designation  of  legal  right. 

9.  It  should  be  remembered  that  legal  right  extends  over 
the  intangible  as  well  as  the  tangible.  An  intangible  object, 
Ri  hts  such  as  reputation,  may  be  within  the  control  or 
over  the  authority  of  the  will  as  much  as  a  tangible  object, 
intangi  e.  ^^^j^  ^^  property.  I  may  keep  or  impair  my  good 
name  at  will ;  I  may  keep  or  barter  away  my  '  good  will ' 
in  business ;  I  may  or  I  may  not  permit  another  to  defraud 
me  to  my  hurt. 

10.  It  is  proper  now  to  inquire  what  rights  are  within  the 
domain  of  the  law  of  torts. 

1  Lord  V.  Dall,  12  Mass.  115. 

2  Williams  v.  Hill,  19  Wend.  305. 


Sect.  1.]  GENERAL  THEORY   AND  DOCTRINE.  7 

11.  Rights  are  either  of  substantive  or  of  procedural  law. 
With  procedural  rights  we  are  not  concerned ;  this  book  treats 
only  of  substantive  law,  not  of  the  machinery  by  ^.  ^^^  in  r  m 
which  the  law  is  enforced.  Rights  of  substantive  and  rights  in 
law  (and  indeed  of  procedural  law,  but  not  on  P^"°°^™' 
the  same  lines),  in  accordance  with  a  division  and  nomencla- 
ture adopted  from  the  Roman  law,  are  in  rem  or  in  personam. 
Rights  in  rem  avail  against  all  the  world ;  rights  in  personam, 
only  against  certain  defined  or  ascertainable  persons.  The 
typical  example  of  a  right  in  rem  is  a  right  of  property; 
propriore  vigore,  that  may  be  enforced  against  any  one  and 
every  one  whenever  occasion  arises.  The  typical  example 
of  a  right  in  personam  is  a  right  of  contract;  that  right 
—  the  contract  right  —  can  be  enforced  only  between  the 
parties  to  it  and  their  successors.  But  just  as  one  has 
the  right  to  enter  into  contracts  freely,  so  after  a  contract 
has  been  made  each  of  the  parties  has  a  corresponding  right 
that  others  shall  not  liinder  the  performance  of  it  without 
just  cause  or  excuse.  It  results  that  a  right  in  personam 
maij  generate  a  (quasi?)  right  in  rem.  But  the  product, 
it  should  be  noticed,  is  a  very  different  thing  from  that 
which  produces  it. 

12.  The  law  of  torts  relates  both  to  rights  in  rem  and  to 
rights  in  personam,  though  most  torts  are  breaches  of  rights 
availing  against  all  the  world,  that  is,  are  breaches  of  rights 
in  rem. 

13.  Another  way  of  putting  the  Roman  division  of  rights 
will  be  found  helpful,  as  serving  to  explain  the  origin  as  well 
as  the  nature  of  rights ;  and  that  is  by  saying  that  Eights  para- 
rights   are    paramount   or   consensual;    the    first  ^g^^^g con- 
kind  designating  those  which  exist  independently  sensual. 

of  the  will  of  individuals ;  the  second,  those  which  come  into 
existence  by  consent,  actual  or  presumptive. 

14.  Both  classes  alike,  whichever  way  designated,  create 
law,  in  the  very  proper  sense  of  that  wliich,  lying  fast  (lex, 
legare),  binds  men  together ;  for  law  consists  merel}^  in  those 
relations   between    citizens  which   are  deemed    necessary  or 


8  LAW  OF  TORTS.  [Sect.  2. 

helpful  to  bind  citizens  together  into  the  organism  called  the 
State,  and  to  find  those  relations  is  to  find  the  law.  Hence 
both  kinds  of  right  are  paramount  in  a  sense;  but  the  one 
kind  exists  originally  and  of  its  own  efficacy  and  is  universal, 
while  the  other  is  brought  into  existence,  typically,  b}'  the 
agreement  of  two  or  more  persons,  and,  generally  speaking, 
governs  them  alone.  Still,  even  with  regard  to  the  latter 
kind  of  rights,  the  judges  have  found  it  desirable  to  hold  that 
the  relations  of  the  parties  to  the  thing  agreed  upon  are  not 
in  all  respects  consensual,  in  the  sense  that  there  can  be  no 
right  or  duty  paramount  to  the  will  of  the  parties  in  the 
subject  of  agreement,  a  matter  to  which  further  attention 
will  be  called  later  on.  The  law  of  torts  deals  with  both 
classes  of  rights;  with  the  first  class  generally,  with  the 
second  so  far  as  the  rights  are  treated  as  paramount  to  the 
will  of  the  parties.  In  a  word,  the  domain  of  the  law  of  torts, 
so  far  as  rights  are  concerned,  lies  in  rights  paramount,  and 
hence  tort,  as  a  ground  of  action,  consists  in  the  breach  of  a 
right  paramount,  that  is,  of  rights  established  by  municipal 
law. 


§  2.    Of  Legal  Privilege. 

15.  Privilege  may  indeed  include  legal  right,  as  where  it 
consists  in  special  powers  granted  by  law,  of  which  riparian 
Privilege  in  water  privileges  would  be  an  example,  or  where  it 
sense  of  mere  is  absolute,  of  which  exemption  of  a  member  of 
permission.  ^^^^  Legislature  from  liability  for  words  spoken  in 
that  capacity  would  be  an  example.  In  that  sense  it  has  been 
disposed  of.  But  the  term  is  also  used,  as  we  have  already 
indicated,  of  mere  permissions.  In  this  sense  it  falls  short  of 
full  legal  right;  towards  the  person  granting  it  it  is  now 
purely  negative  in  character;  it  does  not  furnish  ground  for 
an  action  against  him.  It  imports  protection,  but  protection 
from  an  action  by  the  party  who  has  conferred  it,  and  not  in 
the  way  of  a  ground  of  action  against  him.  Towards  third 
persons  it  may  indeed  confer  a  right  of  action,  as  in  the  case 
of  a  license  to  enter  land,  where  entry  is  interrupted  by  a 


Sect.  2.]  GENERAL  THEORY  AND  DOCTRINE.  9 

stranger.^  But  we  are  not  now  concerned  witli  the  term  in 
any  of  its  aspects  of  legal  right. 

16.  The  conception  of  privilege  thus  set  forth  embraces  per- 
mission of  two  kinds :  first,  permission  '  by  the  party, '  that  is, 

by  some  person  granting  it;  and,  secondly,  per-    „.  , 

■^.     .         ,  ,         ,       ,         ,  .     .  "^     ^  Kinds  and 

mission     by  the  law,    or  permission  paramount,    names  of 

since  it  is  independent  of  the  will  of  the  person    P^^^^^^S®' 

against  whom    it  is  granted.     In  either  of    these    cases  the 

privilege   may   or   may   not   amount   to   legal   right,  as  the 

examples  already  given  show. 

17.  In  the  law  books  privilege  in  both  senses  is  found 
under  various  designations.  In  the  law  of  defamation  it  is 
called  '  privileged  communication;  '  in  the  law  of  trespass  to 
proj^erty  it  is  called  '  license ;  '  and  so  on.  Often  the  word 
'  justification,'  taken  from  the  language  of  pleading,  is  used 
as  a  general,  synonymous  designation  of  the  idea.^  In  sub- 
stance however  it  will  always  be  found  to  amount  to  permis- 
sion, under  reasonable  limits,  to  inflict  harm  upon  another. 

18.  It  is  important,  as  will  appear  further  on,^  to  under- 
stand the  ground  upon  which  privilege  as  permission  rests ; 
but  nothing  more  than  the  general  ground  itself  Ground  of  priv- 
can  be  stated  here.     Privilege  as  mere  permission  offutyor^in^ 
must  of  course  rest  on  terms ;  otherwise  it  would  terest. 

be  '  absolute.'  Upon  what  particular  ground  it  rests  in  spe- 
cial cases  or  in  special  classes  of  torts,  can  only  be  shown 
when  the  special  subject  arises  in  the  '  Specific  Torts  '  follow- 
ing this  General  Part.  The  first  class  of  cases  of  privilege, 
'  by  the  party,'  calls  for  little  comment  here.  The  ground 
of  exemption  is  consent,  which  is  often  expressed  by  a  maxim 
adopted  from  the  Roman  law,  '  volenti  non  fit  injuria  '  —  the 
man  who  consents  to  a  wrong  ('  injuria  ')  is  barred  of  an  action 

»  Barnstable  v.  Thacher,  3  Met.  2:59  ;  post,  p.  226. 
2  '  Justification  '  may  be  of  legal  right,  as  in  the  case  of  self-defence 
or  defence  of  property,  or  it  may  be  of  mei'e  permission. 
8  Infra,  pp.  178,  179,  and  note  5. 


10  LAW  OF  TORTS.  [Sect.  2. 

for  it.^  Privilege  '  by  the  law,'  or  privilege  paramount,  finds 
its  origin  either  in  duty  or  in  interest, ^  and  therefore,  unlike 
legal  right,  rests  upon  motive.  It  is  of  course  limited  ac- 
cordingly. 

19.  Duty  as  a  ground  of  privilege  may  be  official  or  quasi- 
official,   or  only  moral,   that  is,  of  imperfect  obligation.     It 

requires  no  explanation  to  show  that  one  must  be 
Official  duty.  i.     j.    i    j?  j.i  i 

protected  irom  the  necessary  consequences,  how- 
ever harmful,  of  discharging  a  duty  which  one  is  expected  to 
perform.  A  policeman  making  report  to  his  superior,  an 
officer  serving  process,  a  fireman  endeavoring  to  put  out  a 
fire,  must  be  exempt  from  liability  for  everything  done  in  the 
discharge  of  his  duty.  The  law  could  not  be  administered 
upon  any  other  footing  in  the  first  and  second  of  these  cases ; 
and  in  the  third  it  would  be  difficult  to  find  firemen  to  protect 
our  homes  if  the  law  were  otherwise  than  it  is. 

^  There  is  some  limit  to  the  validity  of  consent  itself,  but  no  very 
satisfactory  ground  has  as  yet  been  reached.  Most  authorities  hold  that 
agreements  between  shipper  and  common  carrier  to  exempt  the  carrier 
from  liability  for  the  negligence  of  its  servants  are  invalid,  on  the  ground 
that  the  shipper  is  virtually  in  the  power  of  the  carrier  ;  which  is  reason- 
able doctrine.  But  it  is  also  held  by  most  authorities  that  A's  consent 
to  B's  committing  a  crime  against  him  will  not  bar  an  action  by  A  against 
B  for  damages  sustained  thereby.  Thus  either  party  to  a  fight  may  sue  the 
other  for  assault  and  battery,  notwithstanding  consent.  Shay  v.  Thomp- 
son, 59  Wis.  540 ;  Adams  v.  Waggoner,  33  Ind.  531 ;  Bell  v.  Hansley, 
3  Jones,  131;  Commonwealth  v.  Collberg,  119  Mass.  350.  But  see  Gold- 
namer  v.  O'Brien,  33  S.  W.  Rep.  831  (Ky.),  refusing  a  civil  action  for 
damages  from  attempted  abortion,  on  the  ground  of  assent.  Violation 
of  the  criminal  law  is  deemed  so  unlawful  that  consent  to  violate  it  is 
unlawful.  Of  course  consent  of  the  parties  could  not  bar  a  prosecution 
by  the  State ;  but  that  is  another  thing.  Suppose  the  State  itself  had 
consented  to  the  crime  ? 

Consent  or  want  of  consent  has  nothing  to  do  with  the  case  when  the 
act  or  omission  was  lawful ;  and  consent  obtained  by  fraud  is  no  con- 
sent in  law.  Speight  v.  Oliviera,  2  Stark.  493,  and  Dain  v.  Wycoff,  7  N.  Y. 
191,  194,  as  to  the  last  statement. 

2  Hebditch  v.  Macllwaine,  1894,  2  Q.  B.  54,  C.  A.  ;  Harrison  v.  Bush, 
5  El.  &  B.  344;  Jenoure  v.  Delmege,  1891,  A.  C.  73  (Privy  Council); 
Gassett  v.  Gilbert,  6  Gray,  94;  Joannes  v.  Bennett,  5  Allen,  169. 


Sect.  3.]  GENERAL  THEOIIY   AND  DOCTRINE.  11 

20.   That  privilege  may  also  arise  from  moral  duty  is  not 
so  obvious ;   still  the  fact  rests  in  principle  as  well  as  upon 
authority.     The  case  springs  in  essence  from  an 
instinctive  desire  for  the  preservation  of  the  race, 
a  desire  akin  to  that  of  self-preservation  and  equally  well- 
founded.     It  is  not  directly  necessary  to  put  the  case  upon 
the  ground  of  political  prudence,  which  sees  in  it  the  welfare 
of  the  State,  though  that  plainly  is  a  consequence  of  the  first 
ground,  and  is  the  final  test  of  duty.     I  may  well  enter  my 
neighbor's  premises  to  rescue  his  beast  from  the  mire;  much 
more  may  I  enter  to  save  human  life ;  to  hold  me  responsible 
for   harm    done  in  the  reasonable  discharge  of  such  a  duty 
would   be   to  find   the    existence  of   a  relation  between  my 
neighbor  and  me  which  would  tend  to  anything  but  to  bind 
us   together   into   the    organism    which    we   call   the    State. 
Where  moral  (or  official)  duty  shades  into  pure  voluntaryism, 
becoming  impertinence,  may  often  be  a  difficult  question;  but 

^         such  considerations  cannot  avail  against  the  existence  of  the 
immunity. 

>:  21.    When  it  is  said  that  privilege  may  grow  out  of  interest, 

the  word  '  interest '  must  be  taken  in  the  sense,  it  seems,  of 

v  legal  right,  or  something  in  the   nature  of  legal  'interest 'of 

right.  I  may  have  a  duty  towards  my  neigh-  what  nature, 
bor  as  my  neighbor,  from  an  instinct  of  humanity;  but  I 
have  no  interest  in  him  simply  as  my  neighbor,  except  per- 
haps the  shadowy  interest  in  his  welfare  as  one  of  the  multi- 
tude of  men  composing  the  State,  and  so  sharing  with  me  its 
burdens.  The  interest  required  must  at  all  events  rise  higher 
than  desire  or  even  anxiety  for  another's  general  welfare.^ 

§  3.   Of  Legal  Duty, 

22.   Legal  duty  should  be  considered,  not  only  because  of 
its  natural  relation  to  legal  right,  but  because  of  the  course 
of  the  law.     The  law  has  had  to  look  to  infrac-  xort  on  the 
tions  of  right,  to  wrongs    or  breaches  of   duty,  side  of  duty. 
more   directly  than  to   rights,    as    the  word  tort  itself   im- 

1  See  Sheckell  v.  Jackson,  10  Cush.  25 ;  Cases,  178. 


12  LAW   OF  TORTS.  [Sect.  3. 

plies.^  The  law  of  torts  lias  been  worked  out,  not  directly 
on  the  side  of  rights,  not  in  terms  even  on  the  side  of  the 
violation  of  rights,  but  on  the  correlative  side  of  duties. 

23.  What  then  is  meant  by  legal  duty  ?  Sometliing  neces- 
sarily wliich  one  can  perform.  It  must  therefore  spring  from 
Lee-ai  duty  ^^c^s  which  one  observes  or  may  observe,  suggest- 
explained :  ing  danger,  —  leading  to  harm  as  probable  or  in 
notice^of^^  °^  natural  course.  If  danger  is  not  observed  or 
danger.  observable  by  a  man  of  fair  intelligence,  as  the 
law  has  well  fixed  the  standard,  there  is  ordinarily  no  duty ; 
if  it  is  so  observed  or  observable,  a  duty  ordinarily  arises. 
Knowledge,  or  notice  from  the  circumstances,  of  the  exist- 
ence of  danger  is  therefore  necessary  to  create  a  duty  to 
avoid  harm ;  except  in  peculiar  cases.  The  matter  may, 
then,  be  shortly  put  thus :  When  A  is  situated  towards  B  so 
as  to  be  able  to  see  that  harm  is  likely  to  come  upon  B  by 
misconduct  on  his  C^'s)  part,  A  must  govern  himself  accord- 
ingly ;  he  owes  to  B  the  duty  to  refrain :  to  violate  the  duty 
will  make  him  liable  in  damages. 

24.  Now  legal  duty,  like  the  converse  or  obverse  legal 
right,  is  duty  established  by  municipal  law ;  the  term  '  legal ' 
necessarily  imports  as  much  in  both  cases. 

25.  Duty  in  the  foregoing  remarks  has  been  generalized  in 
its  broadest  terms,  for  all  kinds  of  tort.  To  attempt  specific 
Division  of  Statement,  by  undertaking  to  say  what  kind  of 
legal  duties  conduct  one  should  observe,  or  refrain  from, 
^  °^  ■  would  be  useless.  Duty  in  the  law  of  torts  is  of 
varying  kinds,  and  there  is  no  specific  factor  common  to 
these  various  phases  j  what  would  constitute  specific  duty 
in  one  case  would  not  constitute  it  in  another.  Still,  the 
various  kinds  of  duty  involved  in  the  different  torts  are 
capable  of  being  grouped  into  some  three  classes,  upon  a 
helpful  basis. 

^  Latin  torquere,  tortum ;  to  twist,  a  thing  twisted,  distorted,  hence 
a  wrong,  —  through  Anglo-French;  at  first  however  only  a  colorless 
word. 


Sect.  3.]  GENERAL  THEORY  AND  DOCTRINT:.  13 

26.  In  two  of  the  three  classes  the  breach  of  duty  is  com- 
mitted by  an  act,  in  the  third  class  by  an  act  or  an  omission, 
in  the  sense  in  all  of  them  of  a  thing  done  or  Basis  of  divi- 
omitted  as  the  effect  of  a  psychic  or  mental  pro-  ac°ts  fnd^mis- 
cess,  i.  e.  in  consciousness,  with  purpose,  as  dis-  sions  ••  events, 
tinguished  from  mere  reflex  or  automatic  action;  in  other 
words,  an  act  or  omission  in  the  sense  of  a  tiling  intended, 
for  every  act  or  omission  as  a  thing  of  consciousness  is 
intended.^  In  the  first  two  classes  the  act,  and  the  legal 
result  in  the  breach  of  duty  and  the  infringement  of  right, 
are  coincident,  as  of  course  must  be  the  case  where  the  breach 
of  duty  is  fully  accomplished.  In  the  third  class  the  breach 
of  duty  is  not  at  first  completed,  but  is  provisional  upon 
misfortune  following.  The  infringement  of  right  (if  there 
be  any)  as  a  result  follows^  however  soon,  and  is  itself 
neither  an  act  nor  an  omission.  In  other  words,  the  wrong- 
ful act  or  the  omission  preceding,  which  creates  the  pro- 
visional breach  of  duty,  is  the  only  thing  intended.  What 
sooner  or  later  follows,  to  wit,  the  infringement  of  right 
on  the  happening  of  the  misfortune,  is  only  an  Event, 
though  resulting  in  liability  by  reason  of  the  misconduct 
which  caused  it. 

27.  In  the  first  two  classes  the  effect  of  the  act,  the  breach 
of  duty  and  coincident  infringement  of  right,  may  or  may 
not  have  been  intended,  but  the  act  and  the  effect  intention  and 
are  usually  simultaneous  (though  some  effects  negligence, 
may  appear  later) ;  hence  these  are  commonly  said  to  be 
cases  of  intention.  In  the  third  class  the  effect  is  not  in- 
tended; this  accordingly  is  treated  as  the  domain  of  negli- 
gence. But  liability  in  the  third  class,  as  well  as  in  the  first 
and  second,  often  though  not  always  ^  arises  from  what  was 
intended.     The  distinction  really  lies  in  the  immediateness 

^  Hence  to  speak,  in  common  legal  phrase,  of  an  'mtended  act'  is  a 
pleonasm,  and  confusing ;  it  is  enough  to  say  that  a  thing  done  in  con- 
sciousness is  an  act.  See  Ziehen,  Physiological  Psychology,  29,  London, 
1892. 

^  As  for  instance  where  a  trap  door  is  by  oversight  or  inadvertence 
left  open  or  insecure. 


14  LAW   OF  TORTS.  [Sect.  3. 

or  not  of  the  effect  of  the  misconduct  as  an  infraction  of 
right.^ 

28.  Now,  in  what  may  be  taken  as  the  first  of  the  three 
classes  of  breach  of  duty,  a  lawful  act  is  done  either  by 
Divisions  of  wrongful  means,^  which  is  always  presumptively 
duty  described  unlawful,  or  of  malice,  which  in  certain  cases  is 
an  name  .  presumptively  unlawful ;  by  '  means  '  being  meant 
measures  by  which  an  act  is  done,  by  '  malice  '  a  certain  state 
of  mind  in  which  an  act  is  done.  In  the  second  class  the  act 
done  is  in  itself  presumptively  unlawful.  In  the  third,  what 
may,  as  we  have  seen,  be  called  an  Event  has  taken  place,  which 
event  was  caused  by  negligence  and  is  for  that  reason  presump- 
tively unlawful.^    Shortly,  the  thi-ee  classes  may  be  put  thus : 

1.  Lawful  acts  done  by  wrongful  means  or  of  malice. 

2.  Unlawful  acts. 

3.  Events  (misfortune)  caused  by  negligence. 

29.  This  division  of  torts,  covering  as  it  does  the  whole 
ground,  will  be  followed  in  this  book,  as  Part  I.,  Part  II., 
and  Part  III.* 

30.  Speaking  of  the  first  class  of  cases,  it  matters  not  what 
means  may  be  employed,  so  long  as  the  means  are  wrongful ; 
Wrongful  such  means  will  convert  the  lawful  act  either  into 
means.  ^n  unlawful  one  or  into  one  which  the  law  will 
not  uphold.  Thus  if  a  man  is  induced  to  sell  his  horse  by 
fraud,  or  by  coercion,  threats,  or  intimidation,  what  in  it- 
self is  a  rightful  act,  buying  and  taking  the  horse,  has  by 
reason  of  the  wrongful  means  employed  become  a  tort. 

^  Of  course  the  foregoing  rejects  the  prevalent  notion  that  a  man  in- 
tends  the  natural  consequences  of  his  conduct.  On  that  point  something 
will  be  said  further  on. 

2  Note  that  '  wrongful  means '  imports  something  short  of  a  tort ; 
otherwise  the  case  would  belong  to  the  head  Unlawful  Acts.  Ante,  p.  5, 
note. 

8  In  some  States  the  plaintiff  has  to  show  that  he  was  free  from  fault 
in  the  matter,  to  make  a  presumptive  case. 

^  For  details  see  Specific  Torts,  and  the  statement  following  that  head- 
ing, post,  —  following  this  General  Part. 


Sect.  3.]  GENERAL  THEORY  AND  DOCTRINE.  15 

31.  Of  the  several  means  by  which  a  lawful  act  may  be 
converted  into  one  not  lawful,  fraud  alone  will  be  specially 
considered.     In  regard  to  other  wrongful  means  it 

must  suffice  to  name  them ;  but  fraud  requires 
particular  examination.  Part  I.  will  therefore  be  reduced  to 
a  consideration  of  the  Duty  to  refrain  from  Fraud  and  Malice. 
Of  fraud  it  should  here  be  said  that,  while  taken  in  a  narrow 
sense  the  term  imports  only  a  state  of  mind,  in  its  broader 
sense  it  imports  means  employed  in  a  transaction,  such  as 
misrepresentation. 

32.  It  should  be  observed  indeed  that  fraud,  malice,  and 
negligence  are  all  of  them  terms  of  special  legal  import, — 
that  they  do  not  necessarily  signify  in  the  law  Fraud,  malice, 
what  they  import  in  popular  speech.  The  law  geace^fs^tech- 
declares,  on  the  appearance  of  certain  external  nicai  terms, 
facts,  that  there  is  fraud,  or  malice,  or  negligence,  whatever 
the  popular  meaning  of  the  words.  The  law  has  its  technical 
terms,  and  hence  a  dictionary  of  its  own. 

33.  Fraud  may  be  shortly  disposed  of,  for  the  present  pur- 
pose.    The    offence  includes  two   classes  of   cases;    one  in 

which  the  person  committing-  it  is  now  dealing  „.  .  . 
.,,  ..  -11       Division  of 

with  the  person  upon  whom  it  is  committed,  the  fraud :  present 
other  in  which  he  is  not.  In  the  first  class  of  ^^°^^°  ^"°^' 
cases  the  person  defrauded  is  induced  by  the  misrepresenta- 
tions or  other  artifice  of  the  wrongdoer  to  change  his  position 
to  his  hurt,  whether  by  entering  into  new  relations  with  the 
wrongdoer  or  in  some  other  way.  Here  the  two,  personally 
or  by  agents,  are  face  to  face  or  are  within  touch  by  corre- 
spondence, and  the  wrongdoer  holds  out  some  deceptive 
inducement  which  is  acted  upon  by  the  other.  In  the  other 
class  of  cases  the  wrongdoer  is  seeking  through  some  third 
person  to  circumvent  the  party  to  be  wronged  from  enforcing 
his  rights  against  him.  The  wrongdoer  is  putting  his  prop- 
erty out  of  his  hands,  for  instance,  to  defraud  the  rights  of 
his  creditor  or  creditors.  The  first  of  the  two  classes  is  then 
deception ;  the  second,  circumvention  without  deception. 


16  LAW  OF  TORTS.  [Sect.  3. 

34.  The  first  of  the  two  leads  to  an  action  for  damages ; 
the  second  does  not  in  ordinary  cases.  Tlie  first  alone  is  a 
tort;  we  are  not  concerned  with  the  second.  Only  a  word 
more  need  be  said.  Fraud  in  the  sense  in  which  we  are  con- 
cerned with  the  term  is  one  of  the  elements  of  a  specific  tort 
called  Deceit ;  in  relation  to  which  it  has  a  definite,  well- 
settled  meaning.  What  that  is  will  appear  in  the  chapter 
relating  to  Deceit;  hence  it  need  not  be  considered  here. 

35.  iNIalice  is  one  of  the  most  perplexing  terms  of  the  law, 
especially  in  relation  to  civil  liability.^     It  is  continually  used 

in  different  and  conflicting  senses.  One  thing 
uia/seiise"^"  however  has  always  been  agreed ;  unlike  fraud, 
motive :  sub-  ^^  j^gg  j^q^  import  means,  though  it  may  be  very 
law,  but  not  closely  related  to  means,  so  closely  that  the 
°^°  ^^^'  case  may  falsely  appear  to  be  one  of  malice  ^ 
or  of  means.^  Naturally  and  popularly  malice  imports  mo- 
tive, an  evil  motive  or  design,  as  of  the  very  essence  of  the 
word.  In  law  too  the  word  is  commonly  used  in  a  sense 
which  makes  it  subjective,  that  is,  a  state  of  mind ;  but  that 
does  not  necessarily  make  it  a  motive.  It  does  sometimes 
import  motive  in  its  relation  to  legal  liability,  as  in  the  crimi- 
nal law  of  murder,  where  the  killing  must  be  of  malice  afore- 
thought, that  is,  as  the  precedents  explain  the  expression,  by 
an  evil  design  or  motive.  So  too  in  cases  of  punitive  dam- 
ages, a  survival  of  the  time  when  tort  was  not  yet  fully 
discriminated  from  crime,  the  '  actual  malice '  required  for 
such  redress  appears  to  denote  motive.  But  apart  from  the 
criminal  law  and  its  adjuncts,  it  seems  that  malice,  even 
when  called  '  actual  malice '  or  '  malice  in  the  mind,'  does  not 
necessarily  import  motive.     With  the  exception  just  named 

1  See  the  discussion  in  Allen  v.  Flood,  1898,  A.  C.  1,  and  21  Am.  Bar 
Assoc.  Rep.  342,  345,  350,  351-355  (Krauthoff,  infra). 

2  As  where  A  does  an  act  with  intent  to  harm  B,  but  in  order  to  bring 
B  to  terms  with  him  for  some  gainful  purpose.  The  intent  to  harm  is  so 
dominant  here  that  the  case  is  likely  to  be  looked  upon  as  one  of  malice 
instead  of  means.     See  Temperton  v.  Russell,  1893,  1  Q.  B.  715. 

*  As  perhaps  in  the  case  of  conspiracy.     See  post,  p.  119. 


Sect.  3.]  GENERAL  THEORY  AND  DOCTRINE.  17 

it  will  probably  suffice  for  a  case  of  malice,  wherever  it  is 
necessary  to  prove  malice,  that  the  act  in  question  was  done 
with  knowledge  thit  it  would  do  harm,  or  with  knowledge 
that  it  would  be  unjust,  or  in  reckless  or  wanton  disregard 
of  another's  rights.^  To  prosecute  a  man  with  knowledge 
that  there  is  no  just  cause  of  prosecution  would  be  an 
example.  Here  is  malice  in  the  mind,  but  not  necessarily 
malice  as  an  evil  motive  ;  one'  may  well  know  that  one's  act 
will  be  mischievous  without  being  actuated  by  the  motive  to 
inflict  harm  or  to  do  injustice.  A  man  may  prosecute  another 
without  probable  cause,  in  the  hope  of  gaining  a  reward 
offered  ;  a  man  may  tell  a  wicked  lie  having  as  his  sole  motive 
the  design  to  help  a  friend,  indeed  with  regret  that  harm  to 
any  one  should  follow. 

36.  There  is  another  sense  too  in  which  malice,  as  the  law 
uses  the  term,  may  be  subjective  and  yet  still  further  removed 
from  motive.     To  make  A  liable  for  interrupting  interrupting 

a  certain  relation  between  B  and  C,  as  for  instance  ^ouS^as  ^^*^ 
that  of  master  and  servant,  it  is  necessary  to  prove  mauce. 
that  A  knew  of  the  existence  of  the  relation.  Then,  with 
such  knowledge,  interrupting  the  relation,  he  is  said  to  have 
done  the  act  maliciously ;  he  has  done  it  with  malice  in  the 
mind  because  he  has  done  it  with  knowledge  of  the  relation. 
Here  however  it  is  plain  that  malice  is  or  may  be  quite  emptied 
of  its  natural  meaning. 

37.  In  this  last  case  malice  as  an  entity  is  reduced  to  its 
lowest  terms ;  more  than  that,  it  is  an  inappropriate  and  mis- 
leading name  for  doing  certain  acts  with  notice  of  certain  rela- 
tions, as  a  necessary  condition  merely  to  a  breach  of  duty. 
From  such  cases  it  is  but  a  step  to  cases  in  which  the  doing 
of  certain  acts  is  called  malicious  though  no  relation  with 
others,  of  which  there  must  be  notice,  exists,  as  in  slander 
and  libel. 

38.  The  explanation  of   the  use  of  the  term  '  malice  '  in 

1  Savage  v.  Brewer,  16  Pick.  453  ;  Gott  v.  Pulsifer,  122  Mass.  235 ; 
Zinn  V.  Rice,  154  Mass.  1  ;  Sommer  v.  Wilt,  4  Serg.  &  R.  19;  Allen  o. 
Flood,  1898,  A.  C.  1  ;  Wren  v.  Weild,  L.  R.  4  Q.  B.  734,  73G. 

2 


18  LAW  OF   TORTS.  [Sect.  3. 

these  as  well  as  in  the  foregoing  cases  is  probably  to  be  found 
Connection  of  in  the  historical  connection,  already  referred  to, 
tort  with  crim-     f  ^j      criminal  law  with  the  law  of  torts.     That 

inal  law,  as  to 

mauce.  is,   the   term  was   probably  carried  on  from   the 

criminal  law,  where  it  had  an  appropriate  use,  to  the  law 
of  torts  in  the  course  of  the  emergence  of  that  subject  as 
a  separate  branch  of  law;  where  it  was  retained  without 
sufficient  regard  to  its  inappropriateness  to  questions  of  civil 
liability.^  Malice  thus  becomes,  at  last,  a  mere  name  of  a 
legal  conclusion,  a  name  of  nothing  requiring  proof ;  it  is 
'  simply  malice  in  law '  or  '  implied  malice,'  that  is,  it  is  a. 
downricfht  fiction. 


^t>^ 


39.  To  sum  up :  Malice,  as  an  entity,  in  the  eye  of  the  law, 
like  malice  in  popular  speech,  is  a  subjective  fact.  As  such 
summary  i^  may  signify  (1)  motive    exceptionally,   or  (2) 

division  of  rccklessuess,  or  knowledge  that  an  act  will  be 
element  in  mischievous,  or  (3)  nothing  more  than  knowl- 
liabiiity.  edge  or  notice  of  the  existence  of  some  special 

relation  which  is  interrupted.  In  the  first  case  malice  makes 
a  true  head  in  the  law ;  but  its  place  is  in  criminal  and  quasi- 
criminal  jurisprudence.  There  is  no  other  place  for  malice  in 
the  sense  of  an  evil  motivr,  as  a  necessary  element  of  liability. 
In  the  second  case  it  is  an  old  term  in  civil  liability.     In  the 

^  See  a  paper  read  before  the  American  Bar  Association  at  Saratoga, 
in  August,  1898,  by  L.  C.  Krauthoff,  on  Malice  as  an  Ingredient  of  a 
Civil  Cause  of  Action.  Reports  of  Am.  Bar  Assoc,  xxi.  335.  '  It  seems 
clear,'  says  Mr.  Krauthoff,  '  that  the  pleaders  of  the  olden  days  were 
largely  moved  to  include  the  allegation  of  malice  because  of  the  use 
which  had  been  made  of  it  during  the  period  when  the  civil  remedy  was 
supposed  to  be  limited  to  criminal  or  quasi-criminal  acts.'  And  he  points 
to  the  connection  of  the  allegation  of  homicide  and  murder  with  the  alle- 
gation of  malice  in  civil  cases.  Homicide  is  a  killing  without  just  cause 
or  excuse;  but  to  make  a  case  of  nnirder  as  distinguished  from  man- 
slaughter, it  is  necessary  to  add  that  the  killing  was  of  malice  aforethought. 
Now  in  many  cases  of  tort,  as  in  slander  or  libel,  the  wrongfulness  of  the 
act  does  not  in  reality  require  any  statement  that  it  was  without  just 
cause  or  excuse,  much  less  to  add  that  the  act  was  done  maliciously.  The 
supposed  analogy  of  the  criminal  law,  incautiously  adopted,  is  false  and 
misleading. 


I 


Sect.  3.]  GENERAL  THEORY  AND  DOCTRINE.  19 

third  case,  the  word  having  completely  lost  its  natural  mean- 
ing has  no  just  claim  to  a  place  in  the  law  of  malice.  The 
facts  which  constitute  it  prove  merely  the  existence  of  a 
duty  by  such  as  have  the  knowledge  or  the  notice.  There  is 
nothing  distinctive  of  malice  in  that;  for,  as  we  have  seen,  to 
create  a  duty  there  must  in  all  ordinary  cases  be  observable 
danger;  if  danger  could  not  be  seen  or  foreseen,  if  the  rela- 
tion in  question  was  not  known,  there  could  be  no  duty.  As 
for  malice  which  is  not  an  entity  at  all,  but  only  a  fiction, 
there  is,  a  fortiori,  no  place  for  the  troublesome  term  in  any 
classification  of  subjects  of  the  law. 

40.  It  comes  then  to  this,  that  malice  in  civil  liability 
has  a  place  in  virtue  of  the  legal  extension  of  its  popular 
meaning  to  cases  of  doing  certain  kinds  of  harm  recklessly  or 
with  knowledge  that  such  acts  are  harmful  or  unjust.  In 
certain  cases  then  malice  in  that  sense  makes  an  element  in 
the  cause  of  action.  But  it  is  still  true  that  malice  in  the 
sense  of  an  evil  motive  will  also  help  to  make  a  cause  of 
action  in  the  same  cases;  and  that  fact,  which  at  first 
appears  perplexing,   calls  for  explanation.  ^ 

41.  The  explanation  is  probably  to  be  found  in  the  fact  that 

the  acts  complained  of  in  the  cases  referred  to  are  privileged, 

as  that  term  has  already  been  explained.     They  -.a-  ^  r 

are  not  true  acts  of  legal  right;  they  fall  short  so  ice  as  motive 

far   that   they  are  only  permissions.     The    chief  overturns' 

example  is  malicious  prosecution,  already  referred  permission, 

not  riffht : 
to.     The    term   is    only   a    title;   the    wrong  for  malicious' 

which  an  action  lies  is  a  malicious  prosecution  Prosecution, 
begun  without  reasonable  or  probable  cause.  These  facts 
(together  with  the  termination  of  the  prosecution)  must  be 
proved  by  the  plaintiff.  Now  it  is  clear  that  no  man  has  a 
legal  right  to  prosecute  another  without  reasonable  or  prob- 
able cause.  A  man  may  ([o  so,  as  we  have  seen;  no  action 
can  be  maintained  against  him  for  so  doing.  But  that  is  all 
there  is  of  it;  the  person  so  prosecuting  is  merely  exempt  from 

1  The  evidence  vrill  usually  be  objective,  that  is,  external  to  the  mind, 
as  where  excessive  zeal  in  prosecuting  is  shown ;  but  the  evidence  is 
offered  to  prove  malice  in  the  mind. 


20  LAW  OF  TORTS.  [Sect.  3. 

liability,  —  probably  that  men  may  not  be  discouraged  from 
resorting  to  the  courts  to  settle  their  disputes. 

42.  That  the  matter  does  not  rise  above  the  level  of  per- 
mission to  that  of  legal  right,  may  readily  be  shown.  Sup- 
pose that  by  false  and  fraudulent  representations,  whether  by 
the  person  intended  to  be  prosecuted  or  another,  a  civil  prose- 
cution, without  reasonable  or  probable  cause,  is  put  off  until 
it  is  barred  by  the  Statute  of  Limitations;  could  an  action 
be  maintained  for  the  fraud  ?  Clearly  not,  for  as  there  was 
no  ground  for  the  intended  prosecution  there  could  be  no 
damage ;  and  no  other  kind  of  action  would  fare  any  better. 
The  intended  prosecutor  therefore  had  no  legal  right  to 
prosecute;  indeed  it  would  be  absurd  to  speak  of  a  legal 
right  to  prosecute  where  there  is  no  cause  of  action,  and 
none  the  less  because  it  may  have  been  honestly  supposed 
that  there  was  a  well  founded  claim. 

43.  The  explanation  then  of  the  fact  that  a  plaintiff  in  a 
suit  for  malicious  prosecution  makes  a  case  by  proving  (with 
other  facts)  that  the  prosecution  was  begun  with  malice  as  an 
evil  motive,  or  with  malice  in  any  other  subjective  sense,  is 
that  prooi  of  the  kind  merely  overturns  a  permission  or  privi- 
lege. The  permission  or  privilege  rests  in  all  cases,  as  we 
have  seen,  on  the  motive  of  interest  or  of  duty,  —  in  this 
case  that  the  prosecution  is  brought  with  design  to  protect  a 
proper  interest  of  the  prosecutor,  or  in  the  discharge  of  daty. 
If  then  the  design  was  to  harm  the  party  prosecuted,  in 
other  words  if  the  suit  was  brought  with  an  evil  motive 
towards  him,  it  is  not  within  the  permission  or  privilege. 
And  clearly  there  could  be  no  privilege  of  the  kind  in  ques- 
tion when  the  prosecution  was  begun  in  reckless  or  wanton 
disregard  of  the  defendant's  rights;  the  privilege  must  have 
been  acted  upon  reasonably  and  in  good  faith.  ^ 

44.  The  case  therefore  is  not  one  in  which  legal  right,  or, 
to  use  the  more  common  term,  a  rightful  act,  is  converted 
into  a  legal  wrong  or  a  wrongful  act  by  proof  that  the  right 
was  exercised  with  an  evil  motive;  and  the  same  may  be 
said  of  malice  in  any  other  purely  subjective  form. 

1  See  post,  pp.  178,  179. 


Sect.  3.]  GENERAL   THEORY  AND   DOCTRINE.  21 

45.  Slander   of   title,   so-called,  an   action    for   false    and 
malicious  disparagement  of  property,  is  also  a  case  in  which 
the  disparaging  statements  are  simply  permitted  g^me ;  sian- 
or  privileged. 1     A  maij  falsely  declare  that  B  has  der  of  title. 
no  title  to  a  certain  piece  of  land  claimed  by  B,  or  make  other 
false  statements  concerning  B's  property,   real  or  personal; 
no  action  could  be  maintained  against  him  for  the  statements, 
though  B  suffered  damage  by  them,  any  more  than  if  in  the 
same  sort  of  case  A  had  brought  suit  to  recover  the  land. 
But  that  is  not  because  A  had  a  legal  right  to  do  such  a 
thing;  the  la w  simply ^cr?/itYs  him.     He  could  not  maintain  a 
suit  against  one  who,  by  using  means  of  a  wrongful  nature, 
prevented  him  from  doing  the  thing,  as  by  tearing  up  scat- 
tered notices  or  hand-bills  making  the  false  statements.     But 
A  is  permitted  to  make  the  false  statements  unless  B  shows 
that  he  made  them  maliciously  (to  his  damage).     The  malice 
however  would  be  shown  by  proof  that  A  knew  the  state- 
ments to  be  false  or  made  them  in  reckless  disregard  of  B's 
rights;'-^  that  would  overthrow  the  permission.     Belief  by  A, 
on  the  other  hand,  in  the  truth  of  the  statements,  would  be 
a  defence  if  a  prima  facie  case  were  made  against  him ;  and 
it  seems  to  follow  that  malice  in  the  sense  of  motive  would  be 
irrelevant  to  such  a  defence,  whatever  might  be  said  of  it  if 
offered  in  evidence  at  the  outset  to  make  a  prima  facie  cause 
of  action. 

46.  There  is  nothing  then  in  either  of  the  subjects  consid- 
ered, from  which  it  can  be  inferred  that  malice,  in  the  sense 

1  Wren  v.  Weild,  L.R.  4  Q.  B.  730  ;  Halseyu.  Brotherhood,  19  Ch.  D. 
386;  Gott  d.  Pulsifer,  122  Mass.  235,  238.  But  it  should  be  noticed  that 
the  privilege  in  slander  of  title  and  in  malicious  prosecution  is  not  the 
substantive  privilege  (set  up  in  pleading)  of  slander  and  libel.  It  is  not 
brought  out  except  by  inference  in  the  pleadings  or  evidence.  The  lan- 
guage of  the  cases  should  not  be  misunderstood.  In  slander  and  libel, 
privilege  is  set  up  after  the  plaintiff  has  made  a  prima  facie  case ;  in 
slander  of  title  the  plaintiff  has  to  overturn,  in  the  first  instance,  what 
we  have  in  the  text  spoken  of  as  privilege,  —  which  is  privilege,  not  in 
the  technical  sense,  but  only  in  the  sense  that  false  words  disparaging 
property  are  permitted  if  they  were  not  malicious. 

^  Gott  V.  Palsifer  and  Wren  v.  Weild,  supra. 


22  ■  LAW  OF  TORTS.  [Sect.  3. 

of  motive,  can  overturn  legal  right,  so  as  to  give  to  motive  a 
Same:  sian-  place  in  the  classification  of  civil  Avrongs.  In 
der  and  libel,  slander  and  libel,  malice  lies  still  further  afield ; 
it  has  nothing  whatever  to  do  as  an  entity,  in  any  sense,  with 
making  a  prima  facie  case.  The  plaintiff  here  does  not  have 
to  overturn  any  privilege  in  advance;  it  is  only  when  the 
defendant  has  set  up  a  privilege  and  given  evidence  in  sup- 
port of  the  same  that  the  plaintiff  has  anything  to  do  but  to 
prove  the  publication.  Then,  by  proving  malice,  he  cuts 
away  the  foundation  of  the  alleged  privilege ;  and  all  that  he 
need  prove  in  the  way  of  malice  is  that  the  defendant  pub- 
lished the  charge  knowing  that  it  was  false,  ^  or  in  reckless 
disregard  of  rights. ^  Fraud  then  in  its  more  familiar  aspect  in 
tort,  and  even  negligence,  are  to  a  certain  extent  interchange- 
able terms  with  malice,  though  malice,  in  the  sense  of  motive, 
is  not  interchangeable  with  them.     '  Nullum  simile  est  idem. ' 

47.  There  is,  finally,  little  authority  on  the  common  law 
that  malice,  in  any  merely  subjective  sense,  in  acts  otherwise 

Conclusion  as    ^^*^^*"®  ^^  ^^&'^^  right,  is  entitled  to  a  place  in  the 

to  subjective    classification  of  civil  wrongs,  and   the  contrary 

may  be  laid  down  as  far  more  generally  accepted 

doctrine ;  ^  though   some  authorities,   accepting   the  general 

1  Bodwell  V.  Osgood,  3  Pick.  379.  See  Wren  v.  Weild,  L.  R.  4  Q.  B. 
73i,  736,  Blackburn,  J. ;  Green  v.  Button,  2  Cromp.  M.  &  R.  707  ;  which 
were  cases  of  slander  of  title. 

2  Gott  V.  Pulsifer,  122  Mass.  235,  slander  of  title. 

8  The  following,  among  many  cases,  may  be  mentioned  :  All'^n  ". 
Flood,  1898,  A.  C.  1 ;  Bradford  v.  Pickles,  1895,  A.  C.  587,  affirming 
1895,  1  Ch.  145;  Mogul  Steamship  Co.  v.  McGregor,  1892,  A.  C.  25  (that 
the  motive  '  of  benefiting  the  defendant  at  the  expense  of  the  plaintiff '  is 
not  malicious  or  unlawful,  overruling  on  that  point  Bowen  v.  Hall,  6  Q.  B. 
Div.  333,  338,  Lord  Esher) ;  Chasemore  v.  Richards,  7  H.  L.  Cas.  349, 
388;  Heald  v.  Carey,  11  C.  B.  977,  993  ;  Stevenson  v.  Newnham,  13  C.  B. 
285,  297;  Paine  v.  Chandler,  134  N.  Y.  385,  390;  Frazier  v.  Brown, 
12  Ohio  St.  294;  Boyson  v.  Thorn,  98  Calif.  578;  Payne  v.  Western 
R.  Co.,  81  Tenn.  507  ;  Chatfield  v.  Wilson,  28  Vt.  49 ;  Heywood  v.  Till- 
son,  75  Maine,  225 ;  Glencoe  Land  Co.  v.  Hudson  Co.,  138  Mo.  439,  445 ; 
Anderson  v.  Public  Schools,  122  Mo.  61 ;  Kelly  v.  Chicago  Ry.  Co.,  93 
Iowa,  436,  452;  Bohn  Manuf.  Co.  v.  Hollis,  54  Minn.  223,  233;  Jenkins 
V.  Fowler,  24  Penn.  St.  308 ;  Rideout  v.  Knox,  148  Mass.  368,  372;  Rice 


Sect.  3.]  GENERAL  THEORY  AND  DOCTRINE.  23 

doctrine,  hold  that  malicious  damage  is  actionable  unless 
justified  by  competition  or  other  lawful  cause.  ^  Conversely, 
it  is  equally  true  that  an  act  which  is  a  wrong  or  wrongful 
cannot  be  proved  to  have  been  done  as  of  a  right  or  right- 
fully by  showing  that  it  was  done  from  a  good  motive ;  and 
so  of  omissions  or  conduct  of  whatever  kind.^  There  has 
never  been  any  question  of  this  converse  doctrine. 

48.  So  much  for  Part  I.     ' 

49.  In  Part  IT.,  breach  of  duty  b}^  Unlawful  Acts,  we  come 
to  a  class  of  cases  in  which,  though  there  is  often  a  manifest 
intention  on  the  part  of  the  defendant  to  do  the  Means,  mal- 

verv  thing:  for  which  he  has  been  sued,  the  law  ice,  and  negii- 
j  o  ^  ^  gence  unnec- 

ordinarily  takes  no  account  of  his  motive  or  state  essary. 

V.  Albee,  164  Mass.  88;  May  r.  Wood,  172  Mass.  11.  But  see  Wheatley 
V.  Baugh,  25  Peim.  St.  528,  533;  Swett  v.  Cutts,  50  N.  H.  439;  Bassett 
V.  Salisbury  Manuf.  Co.,  43  N.  H.  569  ;  Graham  v.  St.  Charles  R.  Co., 
27  L.  R.  A.  416  (La.  under  the  Roman  law).  On  interference  with  one's 
occupation  or  established  business,  as  an  exception,  see  post,  pp.  120-123. 
Allen  V.  Flood,  supra,  is  the  most  important  case  on  the  subject.  The 
House  of  Lords  there  overrules  in  effect  Temperton  v.  Russell,  1893, 

1  Q.  B.  715,  C.  A.,  Cases,  109,  i-eaffirms  Mogul  Steamship  Co.  v.  McGregor, 
ut  supra,  and  accordingly  reverses  Flood  r.  Jackson,  1895,  1  Q.  B.  21. 
The  case  (Allen  v.  Flood)  was  twice  argued  in  the  House  of  Lords,  ten 
other  judges  being  called  in  on  the  second  argument  for  advice.  Against 
the  advice  of  a  majority  of  those  judges  the  House  of  Lords  held  the 
plaintiffs  not  entitled  to  recover,  though  their  own  judgment  was  not 
unanimous.  But  the  decision  has  all  the  force  of  an  Act  of  Parliament ; 
only  Parliament  can  change  it.  London  Tramways  Co.  v.  London 
County  Council,  1898,  A.  C.  375.  lu  Plant  v.  Woods,  57  N.  E.  Rep.  1011 
(Mass.),  the  cottrt  declines  to  follow  the  doctrine  of  Allen  v.  Flood; 
though  on  the  facts  in  Plant  v.  Woods  (there  were  threats  of  violence 
and  intimidation)  the  two  cases  are  not  in  conflict. 

The  Roman  law  took  cognizance  of  malice  as  a  motive,  at  least  in 
regard  to  the  use  of  land  ;  and  so  does  the  modern  Civil  or  Roman 
law.  Digest,  39,  3,  1,  §§  12-17;  Bigelow's  L.  C.  Torts,  515,  516,  525; 
Graham  v.  St.  Charles  R.  Co.,  27  L.  R.  A.  416  (La.).  The  Xew  Hamp- 
shire cases,  supra,  appear  to  l)e  in  accord  with  the  Roman  law. 

Malice  in  relation  to  })articular  torts  will  be  considered  as  the  torts 
are  reached,  in  Parts  I.  and  If. 

1  Walker  v.  Cronin,  1(17  .Alass.  5.j5  ;  Cases,  102  ;  Plant  r.  Woods,  .57  N.  E. 
Rep.  1011  (Mass.).    Contra,  Allen  r.  Flood,  1698,  A.  C.  1,  lOO,  138,  139. 

2  Bradford  v.  Pickles,  1895,  A.  C.  587,  594,  598;  Hooper  v.  Truscott, 

2  Bing.  N.  C.  457. 


24  LAW  OF  TOKTS.  [Sect.  3. 

of  mind,  supposed  or  actual,  or  of  the  means  employed,  so 
far  as  the  right  of  action  is  concerned.  The  plaintiff's  right 
of  redress  no  longer  depends  upon  his  showing,  in  any  way, 
that  the  defendant  did  the  act  in  question,  e.  g.  by  fraud  or 
in  malice,  though  it  often  happens  that  one  or  other  of  these 
things  is  present.  Nor  is  negligence,  or  the  want  of  negli- 
gence, any  necessary  part  of  the  case. 

50.  Here  then  is  a  class  of  cases  in  which  the  tort  con- 
sists in  the  breach  of  what  may  be  called  an  absolute  duty ; 
the  act  itself  (in  some  cases  it  must  have  caused  loss)  is  un- 
lawful and  redressible  as  a  tort.  The  cases  in  which  this 
is  true  are,  speaking  generally,  cases  of  procuring  breach 
of  contract,  enticing  away  and  seduction,  ^  slander  and  libel, 
violence  apparently  about  to  be  committed,^  or  actually  com- 
mitted, upon  one's  person,^  restraint  of  liberty,"^  interfering  in 
one  way  or  another  with  the  possession,^  ownership,*^  or  enjoy- 
ment" of  property,  and  failing  to  keep  safely  dangerous 
animals  and  dangerous  things;    and  perhaps  other  cases. 

51.  We  come  now  to  Part  III.  From  regarding,  first,  a 
mental  attitude  of  the  defendant,  and,  secondly,  disregarding 
the  existence  or  non-existence  of  such  an  attitude,  the  law 
now  passes  over  to  cases  in  which  it  regards,  as  an  essential 
fact,  what  at  first  looks  like  a  negative  mental  attitude.  In 
the  class  of  cases  now  reached,  the  law  takes  account  of  the 
fact  that  the  defendant  has  not  directed  proper  attention  to 
danger  attending  some  act  or  omission  of  his,  or,  if  he  has, 
that  he  has  not  conducted  himself  as  he  ought  to  have  done 
in  the  situation.  He  has  failed,  e.  g.,  to  exercise  due  care; 
and  the  failure,  assuming  damage  to  have  followed,  consti- 

1  These  two  cases  are  cases  of  malice  only  in  the  sense  of  doing  the 
act  with  notice  of  a  special  relation ;  which  amounts  only  to  showing  a 
duty.     See  ante,  p.  19. 

^  Assault. 

8  Battery. 

*  False  imprisonment. 

s  Trespass  to  lands  or  goods. 

*  Conversion,  '  trover '  in  the  old  law,  a  wrong  relating  to  goods. 
'  E.  g.  nuisance. 


Sect.  3.]  GENERAL  THEORY  AND  DOCTRINE.  25 


tutes  a  tort.     This  phase  of  the  breach  of  duty  is  the  domain 
of  negligence.^ 

52.  The  net  result   may  then   be  shortly  put  as  follows: 

Looking  to  one  class  of  cases,  a  tort  consists  in  a  breach  of 

duty   committed    by   wrongful    means,    such    as 

n         I  r         T  T       1  •         J.  11  Final  result. 

iraud,  or  or  malice.     Looking  to  a  second  class, 

a    tort   consists   in   a   breacli    of    duty   absolute,    regardless 

of   wrongful    means,    malice,    or   negligence.     Looking  to  a 

third  class,  a  tort  consists  in  a  breach  of  duty  committed  by 

negligence. 

53.  Further,  it  must  be  observed  that,  whatever  the  duty, 
it  must  be  a  duty  to  a  person  complaining  of  the  breach  of  it. 
A  may  have  been  guilty  of  conduct  which  is  a 

breach  of  his  duty  to  B,  but  not  of  his  duty  to  C, 
however  much  C  may  have  suffered  by  reason  of  it.  Or  it 
may  be  a  case  in  which  A  might  have  owed  a  duty  to  C  but 
for  the  fact  that  C  has  relieved  him  of  it.  And  it  is  permis- 
sible for  one  man  to  exempt  another  from  his  duty  to  him  in 
a  particular  case  when  the  act  or  the  omission  is  not  a  viola- 
tion of  the  criminal  law,  as  in  the  case  of  parties  agreeing  to 
fight,  or  when  the  party  exempting  is  not  actually  or  virtually 
in  the  power  of  the  party  to  be  exempted,  as  in  the  case  of 
shipper  and  carrier.  ^ 

^  The  law  does  not,  in  point  of  fact,  stop  to  consider  the  actual  state 
of  mind  of  the  defendant  as  a  ground  of  liability  in  actions  for  negligence  ; 
the  text  only  says  that  negligence  '  at  first  looks  like  a  negative  mental 
attitude.'  It  is  believed  however,  and  it  may  be  helpful  to  notice,  that 
there  is  always  in  fact,  to  some  extent,  a  negative  or  passive  state  of  mind 
in  cases  of  negligen3e  ;  the  mind  has  not  been  duly  aroused  to  the  danger, 
or  if  the  defendant  is  sensible  of  the  situation,  he  has  not  duly  exerted 
his  will  to  avoid  harm.  The  very  etymology  of  '  negligence'  is  instruc- 
tive, as  far  as  it  goes.  '  Neglegere  '  =  '  neclegere ; '  not  to  choose,  not  to 
exercise  the  particular  mental  faculties.  But  the  test  is  applied  to  the 
manifestation ;  the  question  is,  not  what  was  the  defendant's  state  of 
mind,  but  what  did  he  do  or  omit  ? 

2  Whether  a  common  carrier  can  by  contract  exempt  himself  from 
liability  for  negligence  is  not  agreed,  but  in  this  country  the  weight  of 
authority  is  against  any  such  power.     Ante,  p.  10,  note. 


26  LAW   OF   TORTS.  [Sect.  .3. 

54.  The  duty  in  question,  as  we  have  seen,  is  established 

1)}'  municipal  law.     This  will  serve  to  distinguish  tort  from 

Duty  para-       contract ;  for  in  contract  the  duty  is   commonly 

mount  or  of  fixed  bv  the  parties,  in  the  terms  of  the  agree- 
municipai  . 

law.  ment.     But  that  is  not  always  the  case ;  it  hap- 

pens not  infrequently  that  the  parties  to  a  contract  leave  terms 
to  be  supplied  by  the  evidence  of  custom  or  by  the  law  itself. 
In  such  cases  a  violation  of  the  term  so  to  be  supplied  might 
make  a  case  of  tort  or  of  breach  of  contract,  at  the  election 
of  the  injured  party;  the  duty  being  fixed  by  law,  or,  what 
would  come  to  much  the  same  thing,  by  custom,  the  duty 
would  be  paramount,  and  hence  the  breach  could  be  treated 
as  a  tort.  Thus,  if  a  common  carrier  at  Chicago  were  to  con- 
tract with  A  to  deliver  at  New  York  w-heat  put  into  the 
carrier's  hands,  and  fail  to  do  so,  he  would  be  presumptively 
liable  to  A,  as  for  a  tort,  or  for  breach  of  contract,  at  A's 
election. 

55.  Breach  of  an  implied  term  of  a  contract  may  then,  it 
seems,  be  treated  as  constituting  a  tort  whenever  the  term  is 
supplied  by  law  or  by  custom;  but  that  is  not  a  matter  of 
much  importance  in  ordinary  cases ;  the  question  is  only  one 
of  the  i~)referable  remedy.  Still,  it  is  to  be  remembered  that 
in  theory  the  law  of  torts  overlaps  that  of  contract  at  the 
place  indicated. 

56.  It  is  not  to  be  inferred  that  there  cannot  be  a  tort  in 
respect  of  the  breach  of  a  contract  the  terras  of  which  are 
all  fully  expressed.  If  the  contract  contain  a  false  warranty, 
it  is  broken  in  the  breach  of  the  warranty ;  and  breach  of  an 
affirmative  warranty, ^  fraudulently  made,  may  be  treated  as 
a  tort.  So  too,  what  is  of  much  importance,  a  contract 
founded  upon  a  false  and  fraudulent  representation,  though 
not  amounting  to  a  warranty,  may  be  repudiated,  and  an 
action  for  tort  maintained;  or  the  contract  may  be  treated  hy 
the  injured  party  as  binding,  and  an  action  for  tort  brought 
to  recover  damages  for  the  loss  caused  by  getting  him  into 
the  contract.     The  explanation  is,  that  the  breach  of  duty 

1  A  warranty  afl&rming  a  fact,  as  distinguished  from  one  promising 
something. 


Sect.  4.]  GENERAL  THEORY   AND   DOCTRINE.  27 

sued  upon  is  not  in  reality  a  term,  express  or  implied,  of  the 
contract;  the  duty  violated  is  fixed  by  law,  — a  duty  not  to 
defraud.  In  this  view  then  the  law  of  tort  still  further 
overlaps  that  of  contract.^ 

§  4.    Of  Damage. 

57.  We  have  seen  that  tort  gives  rise  to  a  suit  for  damages. 
But  that  does  not  necessarily  imply  that  the  plaintiff  must 
have   sustained   some   loss    or  detriment.      Like  a  technical 

'  fraud,'  '  damage'  is  a  technical  term.  There  are  t^"""^- 
many  cases  in  which  the  defendant  would  not  be  allowed  to 
show  that  the  plaintiff  had  not  suffered  a  pennyworth.  On 
the  other  hand,  there  are  manj'-  cases  in  which  the  plaintiff 
cannot  recover  judgment  without  proving  that  the  act  or  the 
omission  of  the  defendant  caused  a  loss  to  him. 

58.  Loss  in  the  sense  of  actual  harm  or  prejudice  is  called 

in  the  law  special  damage,  though  the  term  '  special  damage  ' 

is  sometimes  used  in  the  sense  of  a  particular  kind  -     .  ,  ^ 

Special  dam- 

of  loss.-^  The  contrasting  term  is  implied  or  legal  age:  when 
damage ;  this  imports  a  mere  violation  of  what  ^°^  Jiecessary. 
may  be  called  an  absolute  legal  right.  Speaking  broadly  the 
cases  in  which  it  is  not  necessary  to  prove  special  damage  in 
an  action- for  tort  are  cases  in  which  the  act  done  is  mani- 
festly dangerous,  so  much  so  that  instinct  calls  at  once  for 
redress  and  would  take  it  but  for  the  law.  Rights  of  life, 
liberty,  property,  and  reputation  furnish  the  subjects  of  such 
redress.  Attempts  uj)on  life,  whether  to  take  life  or  not; 
restraint  of  liberty;  interfering  with  property;  assailing  one's 
good  name ;  such  acts  call  for  redress  without  regard  to  the 
question  of  loss.  One  would  instinctively  seek  redress  in 
such  cases ;  and  the  law  only  sanctions,  what  it  must  in  some 

^  In  regard  to  the  case  of  warranty,  if  what  is  said  supra  is  not  understood, 
it  should  be  observed  that  warranty  in  itself,  where  it  consists  in  the  affir- 
mation of  a  fact,  is  a  contract  only  in  a  peculiar  sense  ;  and  in  general  it 
is  only  false  warranties  of  that  affirmative  kind  that  are  treated  as  torts. 
As  a  statement  of  fact,  a  warranty  is  naturally  a  representation  ;  but  tbo 
law  turns  it  artificially  into  a  contract. 

2  Ratcliffe  v.  Evans,  1892,  2  Q.  B.  524,  o28,  Bowen,  L.  J. 


28  LAW  OF  TORTS.  [Sect.  4. 

way  always  sanction,  instinct.  If  one  had  to  endure  acts  of 
the  kind  not  causing  loss,  one  would  be  constantly  at  the 
mercy  of  bullies  and  lawless  men.  For  the  specific  cases  to 
which  these  remarks  apply,  the  '  Statement  of  the  duty '  at  the 
head  of  the  several  chapters  should  be  consulted,  where  the  pres- 
ence or  absence  of  the  word  '  damage, '  there  used  in  the  sense 
of  loss  or  special  damage,  will  give  the  desired  information. 

59.  To  constitute  damage  in  the  sense  of  loss  or  special 
damage,  it  appears,  by  the  current  of  authority,  to  be  neces- 
sary that  somethinof  more  than  mental  suffering. 

Mental  jo  o' 

suffering  as  or  a  sliock  to  the  nerves,  alone  without  'im- 
damage.  p^^^  » i  ^^  even  followed  by  sickness,  should  have 

been  caused.^  A  workman  on  a  house  might  negligently  let 
a  stick  fall  at  my  feet,  as  I  was  passing  along  the  street,  and 
if,  though  startled,  I  was  not  hit,  the  v/orkman  probably 
would  not  be  liable  for  the  act ;  ^  but  if  he  threw  the  stick  at 
me,  with  the  same  result,  he  would  be  liable,  for  passion 
would  instinctively  be  aroused  to  redress.'*  But  rather  incon- 
sistently, mental  distress  may  be  considered  as  an  element  in 
damages  in  any  case  where  a  right  of  action  is  shown  regard- 
less of  such  distress.^ 

60.  Finally,  the  fact  that  a  tort  is  redressible  in  damages 
serves  to  distinguish  the  wrong  from  a  crime ;  which  is  re- 

1  Victorian  Rys.  Comm'rs  v.  Coultas,  13  App.  Cas.  222  ;  Spade  v.  Lynn 
R.  Co.,  168  Mass.  285;  s.  c.  172  Mass.  488  ;  Texarkana  Ry.  Co.  v.  An- 
derson, 67  Ark.  123.  But  see  Lyne  v.  Western  Union  Tel.  Co.,  123  N.  C. 
129  ;  Telegraph  Co.  v.  Mellon,  96  Tenn.  66.  The  doctrine  rests  partly  on 
the  ground  of  the  difficulty  of  getting  at  the  truth,  partly  on  the  ground 
that  mental  suffering  is  very  much  a  matter  of  individual  temperament 
and  susceptibility,  in  other  words  that  the  effect  is  not  sufficiently  uniform 
to  make  it  natural  and  probable  —  it  is  'remote.' 

2  Terwilliger  u.  Wands,  17  N.  Y.  54,  63 ;  Wilson  v.  Goit,  id.  442. 

'  Compare  Victorian  Rys.  Comm'rs  v.  Coultas,  supra,  fright  upon 
danger  of  collision  with  a  railway  train. 

*  Another  reason  has  well  been  given,  that  an  intended  wrong  is  more 
likely  to  do  harm  than  one  not  intended.  See  White  v.  Duggan,  140  Mass. 
18,  20. 

fi  See  Warren  v.  Boston  &  :M.  R.,  163  Mass.  484,  487;  Harvard  Law 
Review,  January,  1894,  p.  304;  Spade  v.  Lynn  R.  Co.,  168  Mass.  285,  290; 
s.  c,  172  Ma.s3.  488,  490.    . 


Sect.  5.]  GENERAL   'IHEORY   AND  DOCTRINE.  29 

dressed  by  prosecution  on  behalf  of  the  public  for  the  purpose 

of  punishing  the  accused,  by  imprisonment,  hue,  or  forfeiture. 

But  most  crimes  attended  with  loss  may  also   be 

,  TT        •    •  1     •  .  •  Tort    distin- 

treated  as  torts.     Homicide  is  an  exception,  apart  guished  from 

from  cases  falling  within  statute.     It  will  be  seen  ''^^™^- 

then  tliat  the  law  of  torts,  which  we  have  found  overlapping 

tlie  law  of  contracts  on  one  side,  overlaps  on  the  other  the 

criminal  law.     But  the  greater  part  by  far  of  the  domain  of 

tort  lies  between  the  two  extremes. 

61.  In  explanation  of  the  examples  given  throughout  the 
general  text  following,  it  is  to  be  observed  that  when  a  par- 
ticular act  or  omission  under  consideration  is  said  Explanation 
to  be  a  '  breach  of  duty,'  or  of  '  legal  duty,'  or  of  °^  examples, 
the  '  duty  under  consideration,'  it  is  assumed  that  other  ele- 
ments of  liability,  if  there  be  such,  are  present.  Further 
*  breach  of  duty  '  or  the  like  implies  a  right  of  action  in  dam- 
ages. And  the  term  '  damage,'  standing  alone,  is  generally 
used  in  the  text,  as  well  as  in  the  '  Statement  of  the  duty,' 
in  the  sense  of  '  special  damage,'  actual  loss.  The  '  State- 
ment of  the  duty,'  it  may  be  added,  is  intended  to  suggest  a 
prima  facie  case. 

§  5.   Definition  of  Tort. 

62.  Having  in  mind  what  has  been  said  in  the  preceding 
sections  as  constituting  the  substance  of  a  tort,  a  definition 
of  the  term  may  now  be  given.  To  attempt  a  Definition 
definition  which  would  tell  its  own  story  on  its  ^itjj  expiana- 
face  would  be  hopeless.  Indeed  no  definition,  ^^°^- 
helped  out  however  much  by  explanation,  can  convey 
an  adequate  notion  of  the  meaning  of  the  word ;  nothing 
short  of  careful  study  of  the  specific  torts  of  the  law 
will  answer,  for  there  is  no  sucli  thing  as  a  typical  tort,  an 
actual  tort,  that  is  to  say,  which  contains  all  the  elements 
entering  into  the  rest.  One  tort  is  as  perfect  as  another ; 
and  each  tort  differs  from  the  others  in  its  legal  constituents. 
But  they    all   have  this  in   common,  that  there  must  be    a 


30  LAW  OF  TORTS.  [Sect.  6, 

breach  of  duty  paramount,  or,  as  we  shall  now  put  it,  estab- 
lished by  nuinicipal  law;  and  they  all  lead  to  an  action  for 
damages.  These  facts  must  furnish  our  definition.  Accord- 
ingly a  tort  may  be  said  to  be,  a  breach  of  duty  established  by 
municipal  latv  for  whieh  a  suit  for  damages  can  be  maintained  ; 
or,  conversely,  the  infringement  of  a  private  rights  or  a  public 
as  a  private  7'ight,  established  by  municipal  law. 

§  6.   Of  Peesonal  Relation,  or  Status,  etc. 

63.  What  has  gone  before  relates  to  the  law  of  torts  in 
what  may  be  called  its  primary  manifestation,  —  in  other 
Special  mani-  words,  between  citizen  and  citizen  as  such.  But 
festation  of      that  does  not  exhaust  the  subject ;  it  remains  to 

consider  the  subject  as  affected  by  the  fact  of  a 
person's  standing  in  some  special  relation  to  his  fellows,  or 
of  being  subject  to  some  incapacity  before  the  law,  or  of  oc- 
cupying some  special  relation  to  one  who  is  the  immediate 
wrongdoer.  Thus  a  person  sought  to  be  held  liable  for  a  tort 
may  at  the  time  of  the  wrong  alleged  have  been  holding  some 
post  of  state,  such  as  a  judicial  position,  or  he  may  have  been 
under  some  disqualification  or  incapacity,  putting  him  below 
the  level  of  a  full  citizen,  as  where  he  was  insane  or  under 
age,  or  he  may  have  been  an  employer  of  the  person  immedi- 
ately guilty.  Nothing  yet  set  forth  shows  what  the  standing 
of  such  persons  would  be  in  an  action  against  them  for  tort. 
How  does  the  particular  situation  of  a  citizen  affect  the  ques- 
tion of  his  liability  ? 

64.  In  regard  to  persons  holding  under  the  State,  executive, 
legislative,  or  judicial  position,  the  answer  is  a  simple  one  ; 
Executive,  the  case  is  one  ordinarily  of  absolute  privilege, 
andfudicfal  ^^^^  might  have  been  considered  under  the  head 
positiona.  of  privilege  except  that  it  was  thought  best  to 
confine  the  subject  there  to  primary  relations,'or  citizen  and 
citizen,  in  accordance  with  the  treatment  of  right.  No  action 
for  damages  can  be  maintained  against  a  person  for  anything 
said  or  done,  for  example,  in  the  discharge  of  judicial  duty, 


Sect.  6.]      GENERAL  THEORY  AND  DOCTRINE.  31 

except  it  be  an  action  for  false  imprisonment ;  no  action  for 
fraud,  for  malice,  for  trespass  (except  imprisonment),  for  con- 
version, for  negligence,  or  for  anything  else  in  consequence 
of  judicial  action ;  and  so  of  things  said  or  done  by  the 
executive  or  of  a  member  of  the  legislature. 

65.  Because,  appai-ently,  of  the  tender  regard  which  the 
courts  have  always  felt  constrained  to  show  towards  liberty, 
actions  in  certain  cases  are  maintainable  against  magistrates 
who  have  caused  the  imprisonment  of  men  without  just  pro- 
cess. This  is  not  the  place  to  consider  what  is  necessary  to 
make  a  case  against  a  judge  on  such  grounds  ;  to  point  out 
the  liability  is  all  that  is  now  called  for.  The  subject  will 
be  considered  in  its  proper  place.^ 

66.  The  ground  of  the  immunity  of  the  executive,^  of 
legislators,  and  of  judges  is  plain.  The  places  occupied  by 
such  persons  are  the  great  departments  of  the  State,  and  the 
State  could  not  carry  on  its  functions  if  those  set  over  its 
departments  could  be  haled  before  the  courts  at  the  suit  of 
every  person  aggrieved  by  their  action.^ 

67.  In  regard  to  competency  or  capacity,  it  is  to  be  observed 
that  the  breach  of  duty  may  be  committed  by  any  one  having 
natural   capacity.*     The    law   of   torts  affords    a  capacity: 
stronsf  contrast  in  this  particular  both  to  the  law  of  criminal  law 
contracts  and  to  the  criminal  law.     Liability  in  andnegii- 
contract  depends,  it  is  true,  upon  capacity  to  con-  ^^'^*'®- 
tract ;  but  want  of  such  capacity  may  be  either  natural  or  arti- 
ficial (legal).     One  must  be  of  sound  mind  and  at  least  twenty- 
one  years  of  age  to  bind  one's  self  by  contract.^     Liability 
under  the  criminal  law  depends  also  upon  the  existence  of 

^  Chapter  ix. 

2  Spalding  v.  Vilas,  161  U.  S.  483.  See  Chatterton  v.  Secretary  of 
State,  1895,-  2  Q.  B.  189. 

8  Id. 

*  The  law  in  regard  to  married  women  has  been  so  much  and  so 
variously  changed  by  statute  in  the  diiferent  States  that  no  attempt  will 
be  made  to  consider  it. 

^  Contracts  for  necessaries  make  an  exception. 


32  LAW  OF  TORTS.  [Sect.  6. 

capacity  to  commit  crime  ;  but  want  of  this  too  may  be 
natural  or  artificial.  A  person  must  be  of  sound  mind  and 
at  least  seven  years  of  age  to  be  subject  to  punishment  under 
the  criminal  law. 

68.  There  may  be  difficulty  sometimes  in  applying  the  rule  of 
natural  capacity,  but  the  difficulty  can  seldom  arise  except  in 
cases  requiring  proof  of  fraud,  malice,  or  negligence,  and  then, 
generally  speaking,  only  in  suits  against  infants.  Where  the 
doing  of  the  act  creates,  of  itself,  liability,  —  that  is,  where 
there  is  a  breach  of  the  absolute  duty,  —  a  defence  of  inca- 
pacity would  be  manifestly  contrary  to  the  fact,  and  could 
not,  it  seems,  be  allowed.  The  fact  that  the  person  was  of 
unsound  mind  or  a  child  of  tender  years  would  not  be 
material.  It  would  be  enough  that  the  act  Avas  done  of  the 
will,  uncompelled.i 

69.  Cases  requiring  proof  of  fraud,  malice,  or  negligence 
would  perhaps  create  no  difficulty  where  the  defendant  was  a 
person  so  unsound  of  mind  as  not  to  be  accountable  to  the  crimi- 
nal law;  an  action  of  tort  could  hardly  be  maintained.  A  mad- 
man may,  indeed,  be  guilty  of  fraud  or  malice  in  some  sense 
(cmming,  it  is  well  known,  is  a  common  trait  of  the  insane), 
but  not  in  the  sense  in  which  it  would  be  necessary  to  create 
liability,  as  e.  g.  in  an  action  for  deceit  or  for  malicious  prose- 
cution,2  And  clearly  a  madman  cannot  exercise  diligence.^ 
A  person  sane  enough  to  be  accountable  to  the  criminal  law 
would  probably  be  liable  for  any  kind  of  tort. 

1  Is  a  madman,  or  rather  is  a  madman's  estate,  liable  in  damages  for 
the  consequences  of  an  act  otherwise  wrongful  which  was  done,  though 
intentionally,  in  an  uncontrollable  frenzy  ?  Or  suppose  that  A  threatens 
to  kill  B  unless  B  will  trespass  upon  C's  land,  and  B  does  the  act ;  will  it 
affect  the  case  that  B  is  an  infant,  insane,  or  idiotic  ?  The  first  of  these 
questions,  or  an  approach  to  it,  is  thus  raised  and  answered  in  the  Roman 
law :  Et  ideo  quserimus,  si  f uriosus  damnum  dederit,  an  legis  Aquiliae 
actio  sit?  Et  Pegasus  negavit;  quae  enim  in  eo  culpa  sit  cum  suae  men- 
tis non  sit?     Et  hoc  est  verissimum.     Dig.  9,  2,  5,  §  2. 

2  Comp.  Emmens  v.  Pottle,  16  Q.  B.  Div.  3.54,  356,  Lord  Esher. 

^  Whoever  is  incapable  of  diligentia  cannot  be  charged  with  negligentia. 
Whai'ton,  Negligence,  §  87,  on  the  Roman  law.  See  Harvard  Law  Re- 
view, May,  1896,  p.  65. 


Sect.  6.]  GENERAL  THEORY   AND   DOCTRINE.  33 

70.  Infancy  is  more  likely  to  give  occasion  for  serious  diffi- 
culty. An  infant  of  sound  mind  twenty  years  of  age,  or  much 
less,  is  liable  for  any  tort  for  wliicli  an  adult  might  be  sued ; 
an  infant  of  five  years  could  seldom  be  liable  in  damages  for 
negligence,  and  of  course  would  never  be  sued  for  torts  re- 
quiring proof  of  fraud  or  malice.  But  within  these  extremes, 
there  is  a  region  of  uncertainty,  in  which  the  courts,  if  called 
upon  to  act,  must  act  according  to  the  best  light  they  may 
have  in  each  particular  case  ;  the  question  of  capacity  being 
a  question  of  fact.^ 

71.  There  is  a  difficulty  of  another  kind  touching  the  lia- 
bility of  infants  and  of  persons  of  unsound  mind,  namely, 
where  what  would  be  a  tort  in  other  cases,  as  for  example  a 
fraudulent  representation,  is  the  inducement  to  a  contract. 
But  the  rule  in  regard  to  such  cases  is  that  there  can  be  no 
liability  in  tort  if  to  enforce  an  action  of  the  kind  would  vir- 
tually fix  upon  the  incompetent  part}-  liability  for  breach  of 
contract.2  The  case  is  or  may  be  quite  different  where  the 
tort  follows,  but  is  not  caused  by  the  contract ;  to  enforce  an 
action  for  tort  in  such  a  case  would  not  be  to  enforce  a  con- 
tract, as  for  example  to  compel  an  infant  to  make  good  the 
loss  of  a  horse  which  he  has  borrowed  and  then  directly  abused 
and  killed.3 

72.  It  should  not  be  supposed  to  follow  that  persons  under 
disability  can,  in  virtue  of  their  disability,  retain  whatever 
they  may  have  become  possessed  of  by  wrongful  conduct. 
The  meaning  of  the  law  is  only  that  no  liability  actually  or 
virtually  by  way  of  contract  can  be    created  against   such 

^  Of  the  liability  of  infants  for  injuria  (tort)  generallj^  the  Roman 
jurist  Labeo  said,  '  teneri  et  Aquilia  eum,'  to  which  is  added,  '  et  hoc 
puto  verum,  si  sit  jam  injurise  capax.'  Dig.  9,  2,  5,  §  2.  The  contention 
sometimes  maintained  that  infants  are  liable  only  for  absolute  torts  like 
trespass  or  conversion,  and  not  for  torts  like  deceit,  has  not  found  much 
favor.     See  Pollock,  Torts,  53,  2d  ed. 

2  Baker  v.  Stone,  136  Mass.  405;  Alvey  v.  Reed,  17  N".  E.  265  (Ind); 
Wieland  v.  Kobick,  110  111.  16;  Conrad  i'.  Lane,  26  Minn.  389;  Fair- 
hurst  V.  Liverpool  Loan  Assoc,  9  Ex.  422.  But  see  Kilgore  v.  Jordan, 
17  Tex.  341.     These  are  cases  of  infancy. 

'  Burnard  v.  Haggis,  14  C  B.  n.  s.  45. 

3 


34  LAW   OF  TORTS.  [Sect.  6. 

persons.  Infants  have  been  compelled  to  surrender  premises 
obtained  under  lease  by  them,  through  fraudulent  represen- 
tations that  they  were  of  full  age,  upon  the  ground  that  an 
infant  shall  not  take  advantage  of  his  own  fraud  to  keep  his 
ill-gotten  booty.  He  must  restore  what  he  has  obtained  by 
fraud,  if  he  has  it  and  will  not  carry  out  his  bargain.^  But 
cases  of  this  kind,  not  being  actions  for  damages,  do  not  fall 
within  the  scope  of  this  book. 

73.  Allied  to  the  class  of  cases  of  persons  under  disability, 

so  far   as   right  is   concerned,  are   corporations, 
orpora  ions,    rpj^^g^  ^^^  fictitious  persons,  and  when  created  by 

statute  have  no  powers  or  rights  but  those  conferred  by  the 
statute ;  and  since  statutes  seldom  if  ever  confer  upon  cor- 
porations all  the  powers  or  rights  of  citizens,  it  follows  that 
corporations  are  more  or  less  under  disability.  And  formerly 
the  fact  that  a  corporation  was  a  fictitious  person  was  looked 
upon  as  a  serious  obstacle  to  holding  such  a  body  liable 
(except  in  the  case  of  a  corporation  sole)  for  torts  in  which 
mental  attitude  has  or  seems  to  have  place  in  a  cause  of 
action,  and  in  very  early  times  for  torts  of  any  kind ;  ^  which 
of  course  disregarded  the  fact  that  those  composing  the 
corporation  were  human  beings,  for  they  were  not  the 
corporation. 

74.  But  this  technical  piece  of  rationalizing  has  given  way, 
and  it  is  now  probably  general  doctrine  that  the  fact  that 
what  would  be  a  tort  in  the  case  of  an  individual  was  done 
or  omitted  by  a  corporation,  makes  no  difference.  That  is, 
though  not  having  all  the  rights  of  individuals,  corporations 
must  still  respect  the  rights  of  individuals,  —  their  duties 
are  measured  by  the  rights  of  those  with  whom  they  come 

1  Lemprifere  v.  Lange,  L.  R.  12  Ch.  675. 

2  '  The  difficulty  felt  in  earlier  times  was  one,'  it  is  said,  '  purely  of 
process ;  not  that  a  corporation  was  metaphysically  incapable  of  doing 
wrong,  but  that  it  was  not  physically  amenable  to  capias  or  exigent.  22 
Ass.  100,  pi.  67,  and  other  authorities.'  Pollock,  Torts,  53,  2d  ed., 
citing  Serjeant  Manning's  note  to  Maund  v.  Monmouthshire  Canal  Co., 
4  Man.  &  G.  452. 


Sect.  6.]  GENERAL  THEORY  AND  DOCTRINE.  35 

into  contact.  Thus  a  corporation  committing  torts  by  fraud 
or  of  malice  ^  is  liable  for  the  same  as  clearly  as  for  torts 
committed  by  negligence ;  a  corporation  is  liable  also  for 
assault,  false  imprisonment,  and  probably  for  all  kinds  of 
torts. 2  An  exception  has  been  made  by  some  courts  in  favor 
of  charitable  corporations,  on  the  ground  that  where  funds 
have  been  given  to  a  body  incorporated  for  such  public  pur- 
pose they  should  not  be  diverted  to  pay  for  damages  for  the 
torts  of  its  agents  or  servants,  where  due  care  has  been  taken 
in  selecting  its  men.^ 

75.  It  is  obvious  that  disability  in  the  wa}-  of  immunity 
from  liability  for  acts  or  omissions  does  not  of  itself  involve 
diminution  of  rights ;  nothing  but  alienage  or  the  commission 
of  crime  works  abridgment  of  rights,  so  far  as  the  subject  of 
rights  of  action  is  concerned.  All  persons  except  criminals 
undergoing  punishment,  and  aliens,  whatever  their  incapacity 
to   incur   liability,  may  sue  for  tort;   and  the  disability  of 

1  See  e.  g.  Smith  v.  Land  &  House  Corp.,  28  Ch.  Div.  7;  Cases  26 
(deceit)  ;  Cornford  v.  Carlton  Bank,  1900, 1  Q.  B.  22;  s.  c.  1899,  1  Q.  B. 
392  (malicious  prosecution)  ;  Vance  v  Erie  Ry.  Co.,  32  X.  J.  334  (the 
same) ;  Jordan  v.  Alabama  R.  Co.,  74  Ala.  85  (the  same)  ;  Mogul  Steam- 
ship Co.  V.  McGregor,  1892,  A.  C.  25;  Cases,  80  (' conspu-acy ') ;  Fogg  v. 
Boston  &  L.  R.  Co.,  148  Mass.  513  (libel).  In  Comerford  v.  West  End 
Ry.  Co.,  164  Mass.  13,  doubt  is  raised  whether  a  corporation  is  liable 
for  slander  or  libel  by  its  servants  or  agents  in  the  course  of  their 
employment,  unless  the  act  was  authorized  or  adopted  by  the  corpo- 
ration. But  it  may  be  doubted  whether  this  distinction  is  well  taken. 
Cases  denying  any  action  for  malicious  prosecution  have  been  over- 
ruled in  this  country  by  Jordan  v.  Alabama  R.  Co.,  supra,  Boogher  v. 
Life  Association,  75  JVIo.  319,  and  by  other  cases.  But  see  the  re- 
marks of  Lord  Bramwell  in  Abrath  v.  Northeastern  Ry.  Co.,  11  App. 
Cas.  247,  250,  which  were  not  followed  in  Cornford  v.  Carlton  Bank, 
supra. 

2  As  to  municipal  corporations  see  Rhobidas  v.  Concord,  47  Atl.  Rep. 
82  CS.  H.). 

8  Hearns  v.  Waterbury  Hospital,  33  Atl.  Rep.  595  (Conn.);  Downs  v. 
Harper  Hospital,  101  Mich.  555 ;  Heriot's  Hospital  v.  Ross,  12  Clark  & 
F.  507,  513,  dictum  of  Lord  Cottenham.  But  see  Mersey  Docks  v.  GibVjs, 
L.  R.  1  H.  L.  93  ;  Glavin  v.  Rhode  Island  Hospital,  12  R.  I.  411 ;  Mc- 
Donald w.  Massachusetts  Hospital,  120  Mass.  432.  It  will  be  seen  that 
the  English  courts  have  abandoned   the  doctrine. 


36  LAW  OF  TORTS.  [Sect.  6. 

criminals  and  of  aliens  to  sue  has  nearly  become  a  thing  of 
the  past  under  enlightened  legislation. 

76.  The  next  personal  relation  to  be  considered  is  master 
and  servant,  where  a  tort  has  been  committed  by  or  through 
Master  and  ^^^^  servant.  By  the  term  '  servant '  appears  to 
servant.  ]jq  meant  one  who,  being  strictly  subordinate  to 
and  dependent  upon  the  will  of  his  employer  within  the 
terms  of  the  employment,  does  not  make,  or  rather  is  not 
engaged  to  make,  contracts  for  his  employer.^  Such  a  jDcr- 
son,  when  engaged  in  a  lawful  employment,  and  acting  as  a 
servant  and  at  the  same  time  not  '  mlfuUy '  in  the  sense  of 
purposely  or  knowingly  participating  with  his  employer  in 
wrongdoing,  is  not  liable  for  the  consequences  of  his  acts  or 
omissions  as  torts.     '  Respondeat  superior.' 

77.  There  is  no  anomaly  in  this,  for  it  may  well  be  that 
the  wrongfulness  of  what  has  been  done  or  omitted  depends 
upon  knowledge  or  means  of  knowledge  possessed  only  by  the 
master.  In  such  a  case  there  being  on  the  part  of  the  servant 
nothing  to  suggest  harm  or  danger,  he  does  not  see  that  any 
one's  rights  are  being  or  are  likely  to  be  infringed,  and 
hence  he  cannot  be  guilty  of  any  breach  of  duty.  The  con- 
trary will  of  course  be  true  where  the  servant,  though  acting 
under  command,  understands,  or  ought  from  facts  known  to 
him  to  understand,  that  the  rights  of  others  will  be  infringed, 
and  yet  executes  his  orders. 

78.  As  regards  the  liability  of  the  servant  then,  the  case  is 
normal,  falling  in  with  the  general  doctrine  of  rights  and 
duties.  It  is  very  different  as  regards  the  liability  of  the 
master;   his   liability   lies    outside  anything   that  has   gone 

1  When  one  is  employed  to  make  contracts  for  the  employer,  thus 
bringing  about  a  new  relation,  the  case  deserves  another  name,  and  has 
it  in  '  agency.'  See  Huffcut,  Agency,  §  4 ;  Harvard  Lavr  Review,  April, 
1896,  p.  512.  A  person  may  be  ray  servant  for  general  purposes,  as  for 
instance  my  coachman,  and  yet  directly  my  agent,  as  when  I  send  him 
to  purchase  new  furnishings  for  my  carriage  or  to  have  the  carriage 
painted;  he  would  still  be  called  a  servant,  though  exercising  exception' 
aily  the  function  of  an  agent. 


Sect.  6.]  GENERAL  THEORY  AND   DOCTRl^JE.  37 

before  in  this  consideration  of  the  law  of  torts.  The  observa- 
bility of  harm  or  danger,  from  facts  at  hand,  or  facts  one 
ought  to  know,  is,  as  we  have  seen,  the  basis  of  duty ;  but  a 
master  may  be  liable  for  the  torts  of  his  servant,  though  to 
him  (the  master)  there  was  no  ground  for  apprehending  harm ; 
he  may  have  been  a  thousand  miles  away  —  enough  that  the 
servant's  act  or  omission  was  in  the  course  and  within  the 
scope  of  his  employment,  even  though  contrary  to  the  master's 
own  orders.  •    • 

79.  Many  attempts  to  account  for  this  doctrine  of  the  law 
have  been  made  since  it  became  established,  and  some  while 
it  was  in  process  of  acceptance.  Sometimes  it  has  been 
said  that  there  is  an  implied  command  for  every  act  of  the 
servant  in  the  service  of  his  master ;  ^  but  that  is  only  another 
way  of  saying  that  the  act  is  in  law  authorized,  which  is  true, 
but  is  no  explanation  of  the  case.  It  has  also  been  said  that 
the  master  has  put  the  servant  in  the  master's  place  to  do  the 
master's  work ;  or  to  do  the  class  of  things  embraced  in  the 
particular  case.^  But  this  also,  if  in  less  degree,  is  unsatis- 
factory; and  so  of  most  other  reasons  given  in  the  books. 
The  one  ground  which  cannot  be  disputed,  and  probably  is 
the  true  one,  is  that  the  judges  have  on  the  whole  concluded 
that,  in  the  interests  of  the  State,  or  on  what  is  often  called 
public  policy,  it  is  best  that  the  master  should  be  liable. 

80.  But  the  master  is  liable  only  when  the  servant  was  at 
the  time  acting  within  the  scope  of  his  employment,  which 
appears  to  mean  acting  for  the  master;^  and  as  has  already 
been  intimated,  a  servant  may  be  acting  for  his  master,  so  as 
to  fix  upon  the  master  liability  for  tort,  though  the  servant 
was  at  the  time  violating  his  master's  plain  orders.  Thus 
I  may  send  my  servant  with  horse  and  wagon  on  an  errand  to 
a  certain  town,  and  tell  him  that  he  must  not  go  by  a  certain 
road  because  it  is  in  a  dangerous  condition;  but  if  in   the 

'  Blackstone,  i.  417. 

2  Bayley  v.  INIanchester  R.  Co.,  L.  R.  7  C.  P.  415;  Banvick  v.  English 
Joint  Stock  Bank,  L.  R.  2  Ex.  259  ;  British  Banking  Co.  v.  Charnwood 
Ry.  Co.,  18  Q.  B.  Div.  714,  718;  Bigelow,  Fraud,  i.  228,  note. 

*  British  Banking  Co.  v.  Charnwood  Ry.  Co.,  18  Q.  B.  Div.  714  (agency). 


88  LAW  OF  TORTS.  .  [Sect.  6. 

course  of  the  errand  he  goes  by  that  road,  and  while  in  it 
injures  some  one  by  negligent  or  even  by  wilfully  bad  driv- 
ing, I  am  liable.^ 

81.  There  was  some  question  formerly  whether  a  master 
could  be  held  for  what  were  called  '  wilful '  torts  by  his  ser- 
vant, though  committed  on  behalf  of  the  master;  but  the 
doubt  has  disappeared,  and  the  master  would  now  be  held 
liable. 2  Thus,  if  a  servant  of  a  railway  company  should 
commit  an  assault  up©n  a  passenger  in  a  train,  in  the 
course  of  his  employment  and  not  in  consequence  of  some- 
thing outside  of  the  same,  the  railway  company  would  be 
liable.^ 

82.  The  moment  the  servant  ceases  to  act  for  his  master, 
though  still  remaining  in  the  service,  the  master's  liability 
ceases,  and  does  not  arise  again  until  the  servant  begins  once 
more  to  act  for  him.*  Thus,  if  after  starting  out  upon  an 
errand  for  his  master,  the  servant  should  turn  aside  for  pur- 
poses of  his  own  or  another's,  as  if  he  should  go  off  to  make 
a  purchase  for  himself  or  for  some  friend,  or  if  he  should  go 
to  see  a  game  of  ball,  the  master  could  not  be  held  for  torts 
committed  by  him  while  so  doing. ^ 

83.  The  doctrine  which  imposes  liability  upon  the  master 
is  a  general  one,  applying  as  well  to  cases  of  slander  and 
libel,  ^  malicious  prosecution, ^  and  other  torts,  ^  as  to  cases  of 
negligence  and  trespass. 

1  Howe  I'.  Newmarch,  12  Allen,  49.  ^  Id. 

s  See  McGilvray  v.  West  End  St.  Ry.,  164  Mass.  122;  Daniel?;.  Peters- 
burgh  Ry.  Co.,  23  S.  E.  Rep.  327  (N.C.)  ;  Lynch  v.  Metropolitan  Ry.  Co., 
90  N.  Y.  77 ;  Pennsylvania  R.  Co.  v.  Vandiver,  42  Penn.  St.  365 ;  Bayley 
V.  Manchester  R.  Co.,  L.  R.  7  C.  P.  415. 

*  See  Rayner  v.  Mitchell,  2  C.  P.  D.  357,  as  to  the  servant's  re-entering 
upon  his  service. 

5  See  Storey  v.  Ashton,  L.  R.  4  Q.  B.  476  ;  Rayner  v.  Mitchell,  2  C. 
P.  I).  357;  Mitchell  v.  Crasweller,  13  C.  B.  237. 

6  Smith  V.  Utley,  65  N.  W.  Rep.  744 ;  Dunn  v.  Hall,  1  Ind.  344 ;  Huff 
V.  Bennett,  4  Sandf.  120 ;  Davison  v.  Duncan,  7  El.  &  B.  229.  A  receiver 
in  chancery  is  not  exempt  from  liability.  Martin  v.  Van  Schaick, 
4  Paige,  479. 

7  Vance  v.  Erie  Ry.  Co.,  32  N.  J.  334  ;  ante,  p.  35. 

8  Smith  V.  Land  &  House  Corp.,  28  Ch.  D.  7;  Cases,  26  (Deceit). 


Sect.  6.]  GENERAL   THEORY   AND   DOCTRINE.  39 

84.  Closely  allied  to  master  and  servant,  for  the  purposes 
under  consideration,  is  the  relation  of  principal  and  agent. 
It  is  sometimes  put  as  a  distinction  between  the  Principal  and 
two  relations,  that  a  servant  can  exercise  no  inde-  agent, 
pendent  discretion,  but  is  subject  at  all  times  to  the  control 
and  direction  of  his  master,  wliile  an  agent  acts  largely  upon 
his  own  discretion ;  but  the  distinction  will  not  bear  examina- 
tion. So  far  as  there  is  a  difference  in  the  matter  of  discre- 
tion between  the  two  relations,  it  is  a  difference  of  kind,  not 
a  difference  between  the  absence  and  the  existence  of  discre- 
tion. A  servant  must  frequently  exercise  a  very  wide  and 
important  discretion,  especially  when  his  master  is  beyond 
reach.  A  servant  employed  to  drive  a  stage-coach  or  an 
electric  car  has  the  care  of  human  lives  committed  to  him, 
and  their  safety  will  depend  very  much  upon  the  exercise  of 
his  own  discretion ;  ^  and  on  the  other  hand  even  the  simplest 
kind  of  service  involves  the  exercise  of  discretion,  other- 
wise a  stupid  servant  would  be  as  useful  as  a  bright  one. 
The  master  cannot  be  present  all  the  time  to  direct  his 
servant. 

85.  The  real  difference  is  in  the  kind  of  discretion  to  be  ex- 
ercised ;  an  agent,  while,  like  a  servant,  subordinate  to  and 
not  independent  of  his  employer,  is  employed  to  make  con- 
tracts for  his  principal.  That  makes  a  fundamental  difference ; 
but  it  does  not  bring  about  any  special  result  in  regard  to  the 
principal's  liability  for  his  agent's  torts.  The  liability  of  a 
principal  is  the  same  as  that  of  a  master,  whatever  the  tort. 
And  the  limits  of  liability  are  the  same ;  a  principal,  like  a 
master,  is  liable  for  his  agent's  torts  only  when  his  agent  is 
acting  for  him,  not  when  the  agent  is  acting  for  himself, 
even  though  doing  something  which  he  might  have  done  for 
his  principal. 2 

^  '  That  the  proper  management  of  the  boilers  and  machinery  of  a 
steamboat  requires  skill  must  be  admitted.  Indeed,  by  the  Act  of  Con- 
gress of  August  30,  1852,  great  and  unusual  precautions  are  taken  to  ex- 
clude from  this  employment  all  persons  who  do  not  possess  it.'  New 
World  V.  King,  16  How.  4G9. 

2  British  Banking  Co.  v.  Charnwood  Ry.  Co.,  18  Q.  B.  D.  714. 


40  LAW  OF  TORTS.  [Sect.  6. 

86.  Some  courts  make  a  single  exception  to  the  general  rule 
by  which  a  principal  is  held  liable  for  the  torts  of  his  agent 
committed  on  his  behalf;  they  refuse  to  hold  an  innocent 
principal  liable  for  the  fraudulent  misrepresentations  of  his 
agent,  which  as  a  matter  of  fact  were  not  authorized,  though 
they  were  made  in  the  course  and  within  the  scope  of  the 
ogent's  employment.^  This  has  been  put  upon  the  ground 
that  the  general  rule  imposing  liability  upon  one  who, 
morally  speaking,  is  guiltless  is  exceptional  and  harsh.  Such 
a  rule  it  is  declared  should  not  be  extended  to  a  new  class  of 
cases  not  necessarily  within  it,  except  upon  grounds  of  urgent 
public  policy ;  and  no  such  grounds  are  considered  to  exist. 
The  tendency  of  the  authorities  however  has  been  steadily 
against  this  view,  and  accordingly  most  of  the  courts,  refus- 
ing to  make  any  exception,  hold  the  principal  liable.^  All 
would  agree  that  if  the  principal  derived  a  benefit  from  his 
agent's  fraud,  without  offering  to  return  it  upon  discovering 
the  deception  practised,  he  would  be  liable. 

87.  For  the  torts  committed  by  one  of  two  or  more  ser- 
vants to  the  damage  of  a  fellow  servant,  the  master  is  not 
Fellow  ser-  liable,  unless  statute  makes  him  liable.  Cases 
vants.  Qf  ^\^Q  l^ind  seldom  arise  except  in  negligence,  and 
hence  the  rule  is  commonly  justified  in  terms  relating  to  neg- 
ligence. The  servant,  in  entering  the  service,  assumes, 
legally  speaking,  the  risk  of  everything  which  is  incidental  to 
the  employment,  and  this  is  declared  to  include  the  negli- 
gence of  a  fellow  servant. 3     But  the  exemj)tion  from  liability 

1  Kennedy  v.  McKay,  4.3  N.  J.  288;  Western  Bank  v.  Addie,  L.  R. 
1  H.  L.  Sc.  145.  See  Bigelow,  Fraud,  i.  228.  The  principal  is  '  innocent ' 
in  the  double  sense  of  not  in  fact  having  authorized  the  representation, 
and  not  knowing  or  liaving  reason  to  know  that  it  was  false. 

2  AUerton  v.  Allerton,  50  X.  Y.  670;  Creig  v.  Ward,  3  Keyes,  39.3; 
Durst  V.  Burton,  47  N.  Y.  167;  Jeffrey  v.  Bigelow,  13  Wend.  518;  White 
c.  Sawyer,  16  Gray,  586;  Fitzsimmons  v.  Joslin,  21  Vt.  119;  PresV)y  v. 
Parker,  56  N.  H.  409 ;  Lee  v.  Pearce,  68  N.  C.  76 ;  Hopkins  v.  Snedaker, 
71  111.  449;  Barwick  v.  English  Joint  Stock  Bank,  L.  R.  2  Ex.  259 
(Ex.  Ch.)  ;  Mackay  v.  Commercial  Bank,  L.  R.  5  P.  C.  394 ;  and  other 
cases  cited  in  Bigelow,  Fraud,  i.  227. 

*  Post,  chap,  xviii.  §  11. 


I 


Sect.  6.]      GENERAL  THEORY  AND  DOCTRINE.  41 

is  not  limited  to  cases  of  negligence;  on  the  contrary  the 
employer,  whether  a  master  or  a  principal,  is  not  liable  at 
common  law  for  damage  wrongfully  done  by  one  servant  or 
agent  to  his  fellow  in  the  course  of  the  business,  whatever  the 
nature  of  the  tort,  whether  of  negligenee,  fraud,  malice,  or 
anything  else. 

88.  The  doctrine  that  the  servant  assumes  the  risk  of  neg- 
ligence on  the  part  of  his  fellows  is  not  then  broad  enough, 
even  if  it  were  not  what  it  appears  to  be,  an  arbitrar}^  doctrine, 
generally  untrue  in  point  of  fact.  It  would  be  still  less  true 
to  say  that  a  servant  assumes  the  risk  of  torts  in  general  by 
his  fellows.  The  truth  appears  to  be  that,  without  resorting 
to  fiction,  a  servant  stands  in  a  different  position  towards 
his  master  from  that  of  a  stranger.  This  may  be  seen  by 
supposing  the  case  of  a  man's  children,  who  in  law  are  his 
servants,  or  of  a  man's  domestic  servants ;  the  idea  that  one 
of  these  could  sue  the  master  for  torts  of  another  of  them 
would  be  revolting.  The  case  of  non-domestic  servants 
differs  only  in  degree,  and  the  degree  of  difference  must  be 
considerable  to  justify  an  alteration  of  the  common  law  even 
in  cases  of  negligence ;  much  more  so  in  other  cases.  Masters 
furnish  the  means  of  support  for  servants,  and  hence  should 
not  be  liable  to  their  servants  unless  they  have  done  them 
wrong.  The  relation  is  beneficent  towards  the  more  depend- 
ent classes,  and  should  not  be  discouraged. 

89.  The  relation  of  servant  or  agent  is  one  of  strict  depend- 
ence upon  the  authority  of  the  employer;  it  is  on  independent 
that  footing  that  the  latter  is  liable.  When  the  contractors, 
employment  does  not  create  dependence,  when  the  person 
employed  is,  in  the  conduct  of  the  em})loyment,  independent 
of  the  person  engaging  him,  when  in  a  word  he  is  what  is 
called  in  the  books  an  '  independent  contractor, '  the  employer 
is  not  liable  for  the  torts  of  such  contractor ;  ^  unless  the  mis- 

1  Hilliard  v.  Richardson,  3  Gray,  349;  L.  C.  Torts,  636;  Gorham  v. 
Gross,  125  Mass.  232;  Cuff  v.  Newark  R.  Co.,  6  Vroom,  17;  Brown  v. 
Accrington  Cotton  Co.,  3  li.  &;  C.  511  ;  Ilardaker  t\  Idle  District  Council, 
1896,  1  Q.  B.  335  ;  post,  chap,  xviii.  §  12. 


42  LAW   OF   TORTS.  [Sect.  6. 

conduct  of  the  contractor  was  itself  also  a  breach  of  duty 
owed  by  the  employer,  as  where  there  was  a  vice  in  the  very 
undertaking.^  Thus  if  I  enter  into  contract  with  a  builder 
to  erect  a  house  for  me,  or  to  make  over  a  factory  into  a 
house,  he  alone  will  be  liable  to  others,  until  I  resume  con- 
trol, for  torts  committed  in  the  course  of  the  work,  notwith- 
standing the  fact  that  the  work  is  done  for  me.^  And  so  in 
turn  if  he  should  employ  an  independent  sub-contractor  for 
part  of  the  work,  such  as  putting  in  the  gas  fittings,  such 
sub-contractor,  and  not  the  chief  contractor,  much  less  the 
first  employer,  will  be  liable  for  torts  committed  in  perform- 
ing the  sub-contract,  until  he  turns  over  his  work  to  the  prin- 
cipal contractor.^ 

90.  The  qualifications  to  this  doctrine,  as  has  been  indicated, 
are  found  in  cases  in  which  the  employer  owed  some  duty  to 
others  regardless  of  the  '  independent  contract,'  which  that 
contract  does  not  relieve  him  of.  Thus  the  owner  of  prem- 
ises owes  the  duty  to  others  not  to  maintain,  or  allow  to  be 
maintained,  a  nuisance  upon  his  premises,  and  if  in  conse- 
quence of  a  contract  with  another  a  nuisance  is  created 
there,  th€  owner  will  not  escape  liabilit}^  because  the  per- 
son immediately  guilty  of  causing  it  is  an  independent 
contractor.* 

91.  The  same  would  be  true  if  the  thing  authorized  to  be 
done  by  the  contract  were  wholly  illegal,  or  wholly  without 

1  Gorham  v.  Gross,  125  Mass.  232  ;  Sturges  v.  Theological  Education 
Soc,  130  Mass.  414 ;  Hardaker  v.  Idle  District  Council,  1896,  1  Q.  B. 
335,  341,  352;  Penuy  v.  Wimbledon  District  Council,  1899,  2  Q.  B.  72, 
C.  A. ;  post,  p.  380. 

2  Hilliard  v.  Richardson,  supra. 

8  Cuff  y.  Newark  K.  Co.,  supra;  Rapson  v.  Cubitt,  9  M.  &  W.  710; 
Overton  v.  Freeman,  11  C.  B.  867.  See  L.  C.  Torts,  657.  '  In  ascer- 
taining who  is  liable  for  the  act  of  a  wrongdoer,  you  must  look  to  the 
wrongdoer  himself,  or  to  the  first  person  in  the  ascending  line  who  is 
the  employer  and  has  control  over  the  work.  You  cannot  go  further 
back  and  make  the  employer  of  that  person  liable.'  Murray  v.  Currie, 
L.  R.  6  C.  P.  24,  27,  Willes,  J. 

*  Sturges  V.  Theological  Education  Soc,  supra;  Harding i'.  Boston,  163 
Mass.  14;  Hardaker  v.  Idle  District  Council,  supra;  Hilliard  v.  Richard- 
son, supra. 


Sect.  7.]  GENERAL   THEORY  AND   DOCTRINE.  43 

the  sanction  of  law,  as  if  a  town,  having  no  authority  to  lay 
gas  pipes  through  its  roads,  should  contract  with  a  person  to 
lay  such  pipes,  and  some  one  should  be  injured  by  nuisance, 
trespass,  or  negligence  on  the  part  of  that  person,  in  the 
work.^  And  the  like  would  be  true  of  cases  in  which  a 
corporation,  municipal  or  not,  having  special  duties  towards 
the  general  public,  as  in  the  case  of  a  railroad  company, 
should  employ  an  independent  contractor  to  do  work  for  it 
in  premises  which  the  company  was  bound  to  have  in  fit 
condition  for  business  of  the  public ;  in  such  a  case  the 
railroad  company  could  not  delegate  or  otherwise  get  rid 
of  its  own  duty  to  the  public.^  Liability  in  such  cases,  it 
should  be  noticed,  is  not  confined  to  negligence. 

§  7.   Of  Legal  Cause:   Contributory  Fault. 

92.  The  defendant's  misconduct  must  have  been  the  legal 

cause,  or  part  of  the  legal  cause,  of  that  of  which  the  plaintiff 

complains,  to  enable  the  plaintiff  to  recover  judg-  piaintifFs 

ment.     Havinar  resrard  to  the  defendant  and  third  misconduct 

Till  •.         .^        ^^  V^^^  of  the 

persons,  it  need  not  be  the  sole  cause ;  it  matters  cause  of 

not  that  others  helped  the  matter  along,  so  far  as  ^^°"^^^- 

the  right  of  the  injured  person  to  sue  any  one  (as  well  as  all 

of  them)    is  concerned.     But  considering  only   the   person 

injured   and   the  defendant,  the  defendant's   conduct   must 

have  been  the  sole  cause  of  complaint ;    if  the  plaintiff's  own 

conduct  made  part  of  the  cause  of  action,  he  cannot  recover. 

93.  In  such  a  case  the  defendant  has  violated  no  duty  to 
the  plaintiff,  whatever  duty  he  may  have  owed;  it  is  the 
plaintiff  and  the  defendant  together  who  have  done  or  omitted 
the  thing  complained  of.  And  whatever  might  be  said  in 
favor  of  separating  the  conduct  of  the  defendant  from  that 
of  the  plaintiff,  where  the  plaintiff's  conduct  was  not  the  sole 
cause  of  the  injury,  the  courts  generally  have  looked  upon 

1  Ellis  V.  Sheffield  Gas  Co.,  2  El.  &  B.  767. 

2  Cuff  r.  Xewark  R.  Co.,  supra  ;  Storrs  r.  Utica,  17  N.  Y.  104;  Chicago 
V.  Robbins,  2  Black,  418  ;  Holmes  v.  Northeastern  Ry.  Co.,  L.  R.  4  Ex. 
254;  Smith  v.  London  Docks  Co.,  L.  R.  3  C.  P.  326. 


44  LAW  OF  TORTS.  [Sect.  7. 

it  as  unwise,  if  not  impracticable,  to  attempt  to  administer 
the  law  in  that  way.^ 

94.  The  courts  however  are  very  careful  to  distinguish 
mere  conditions  from  legal  causes  .^  In  a  certain  sense  of  the 
Conditions        word  '  causc,'  as  used  b}^  able  metaphysicians,  the 

distinguished  plaintiff  canuot  but  be  part  at  least  of  the  cause 
from  causes.         c  -i  •  •    c     ,  p  ^  -i  ^  • 

01  his  misiortune,  tor  unless  he  or  ms  property 

was  where  he  or  it  was  at  the  time  in  question,  no  harm 
could  have  befallen  him,  and  that  of  course  whether  his  own 
conduct  in  the  matter  was  wrongful  or  not.  But  that  is  not 
the  conception  of  cause  which  the  courts  have  adopted  ;  the 
courts  distinguish,  as  was  just  stated,  between  things  or 
situations  which  are  but  conditions  necessary  to  the  happen- 
ing of  any  misfortune,  and  things  or  situations  which  in  them- 
selves have  the  promise  or  potency  of  misfortune.  A  result 
is,  legally  speaking,  caused  when  it  happens  as  the  natural 
effect  of  that  which  brings  it  to  pass ;  the  case  is  this,  that 
standing  with  knowledge  or  what  should  be  accounted  knowl- 
edge of  certain  facts,  harm  is  likely  to  follow  in  natural 
course.  Hence  there  can  be  no  breach  of  duty  by  the  de- 
fendant when,  in  such  a  case,  the  plaintiif  himself  does  or 
omits  to  do  the  thing  which,  though  in  necessary  connection 
with  the  defendant's  misconduct,  is  likely  to  produce  the 
harm. 

95.  On  the  other  hand,  if  what  the  plaintiff  has  done  or 
omitted  was  not  likely  to  produce  the  harm,  or  any  harm  at 
all,  his  doing  or  omitting  is  no  more  than  a  condition  to  the 
result,  and  the  defendant  has  violated  his  duty  to  the  plain- 
tiff. He  alone,  considering  none  but  the  plaintiff  and  the 
defendant,  has  caused  the  damage.^ 

1  A  few  courts  have,  in  cases  of  negligence,  adopted  a  suggestion  of  ad- 
miralty law,  and  resorted  to  a  comparison  of  fault  between  the  plaintiff  and 
defendant,  rejecting  the  doctrine  of  contributory  fault.    See  post,  p.  396. 

2  See  e.  g.  Newcomb  v.  Boston  Protective  Department,  146  Mass.  596 ; 
Cases,  557. 

3  The  case  is  often  treated  as  a  phase  of  the  maxim  'causa  proxima, 
non  remota,  spectatur,'  considered  in  the  next  section. 


Sect.  8.]  GENEEAL  THEORY  AND  DOCTRINE.  45 

96.  The  doctrine  in  question  is  obviously  a  general  one, 
applying  to  all  torts.  As  a  matter  of  fact  however  it  is 
seldom  called  into  service  except  in  cases  of  negligence ; 
there  almost  exclusively  it  has  found  its  development,  and 
there  it  has  special  phases  that  will  require  particular  ex- 
amination when  the  subject  of  negligence  is  reached.  The 
reader  is  accordingly  referred  to  the  chapter  on  Negligence 
for  further  information.^         ^ 


§  8.   Of  Termination  of  Liability. 

97.  Liability  for  tort  having  been  incurred,  how  far  does 

it  extend?     For  it  is   obvious  that  a  train  of  unfortunate 

results  may  follow.     The  general  answer  to  the 

question,  though  scarcely  an  answer  at  all  until  proxfma,  non 

explained,  is  that  a  man  is   liable  for  all  such  remota, 

.  .  spectatur. 

consequences  of  his  torts,  as,  legally  speaking,  he 

has  caused.     This  answer  is  often  put  in  terms  of  a  maxim 

or  rule  of  the  Roman  law,  adopted  into  our  jurisprudence ; 

'  causa  proxima,  non  remota,  spectatur,'  —  the  law  regards 

the  '  proximate,'  not  the  '  remote '  cause. 

98.  With  reference  to  this  maxim,  nothing  could  be  more 
misleading  than  to  take  it  in  its  plain,  primary  sense ;  in  that 
sense  the  law  as  often  regards  the  '  remote '  and  disregards 
the  proximate  cause,  as  it  does  the  contrary.  A  tosses  a 
lighted  squib  into  one  of  the  booths  of  a  market,  and  B,  the 
owner  of  the  booth,  instinctively  throws  it  out  and  it  falls  into 
the  booth  of  C,  who  repeats  the  instinctive  act,  but  now  the 
squib  strikes  D  in  the  face  and  puts  out  his  eye.  C  obviously 
is  nearest,  or  '  proximate '  in  the  primary  sense,  to  D,  and  A 
is  most  '  remote '  of  all ;  and  yet  A  is  liable  to  D,  and  C  prob- 
ably is  not ;  A  is  liable  whether  C  is  or  is  not,  supposing  that 
C  has  acted  instinctively  and  not  of  purpose,  negligence,  or 
other  wrongful  conduct  towards  D.^  It  is  obvious  that  the 
maxim  is  to  be  taken  in  some  metaphysical  sense ;  B  and  C 

1  See  also  L.  C.  Torts,  721-725. 

2  Scott  V.  Shepherd,  2  W.  Black.  392. 


46  LAW  OF  TORTS. 


[Sect.  8. 


must  be  regarded  as  machines,  and  the  final  result  as  happen- 
ing in  the  natural  course  of  things. 

99.  '  Results  happening  in  the  natural  course  of  things '  is 
the  more  common  way  of  putting  the  case ;  a  tort  having  been 

committed,  the  wrongdoer  is  liable  for  whatever 
course  of  happens  in  the  natural  course  of  things,  having 

lely^  ^^  °^^'  ^'^S^^^^^  to  the  time  when  the  tort  was  committed. 

The  rule  does  not  mean,  broadly,  that  liability  ex- 
tends to  whatever  occurs  in  the  course  of  nature ;  it  means 
what  occurs  in  the  course  of  nature  as  things  were  known 
when  the  wrong  was  first  done.  Thus  a  person  who,  in  vio- 
lation of  law,  should  start  a  fire  in  the  highway  would  be 
liable  for  damage  done  by  any  spread  of  the  fire  in  the  condi- 
tion of  the  atmosphere  when  the  fire  was  started,  or  while  it 
was  still  under  control ;  but  not  perhaps  for  damage  produced 
by  a  hurricane  or  tempest  suddenly  and  unexpectedly  arising.^ 

100.  On  the  other  hand,  it  is  not  necessary  that  the  partic- 
ular mischief  resulting  should  have  been  foreseen  or  regarded 
Actual  result    ^^  probable.     A  person  who  sets  a  fire  wrongfully, 

need  not  have    or  does  not  properly  guard  a  fire  which  he  sets,  in 
been  foreseen.        i         j-iii*  -i  •    t   ^  ^     n        -, 

a  dry  stubble  m  midsummer,  is  liable  for  damage 

done  by  its  spread,  under  the  observable  conditions  of  the 
air  at  first  prevailing,  even  in  case  the  fire  should  unexpect- 
edly cross  broad  fields  and  extend  to  buildings  or  haystacks 
beyond.2  In  like  manner  one  who  wrongfully  sets  a  fire  or 
unlawfully  allows  a  fire  to  get  under  way  among  timbers 
floating  down  a  stream,  the  burning  timbers  finally  causing 
the  destruction  of  property  several  miles  below,  is  liable  for 
the  loss ;  he  has  in  the  legal  sense  caused  the  loss,  however 
improbable  it  may  have  been,  because  it  happened  in  the 
natural  course  of  things  understood.  So  again  one  who  un- 
lawfully strikes  another  will  })e  liable  for  what  ensues  natu- 
rally from  the  known  state  of  things  in  the  person  struck, 
though  the  result  appears  to  be  out  of  proportion  to  the  blow,^ 

1  Post,  p.  397  ;  Wharton,  Negligence,  §§  114-116,  2d  ed. 

2  Smith  V.  Southwestern  Ry.  Co.,  L.  R.  5  C.  P.  98 ;  6  C.  P.  14  (Ex. 
Ch.). 

«  See  Stewart  v.  Ripon,  38  Wis,  584. 


Sect.  8.]  GENERAL  THEORY  AND  DOCTRINE.  47 

though  probably  not  for  consequences  due,  with  the  blow,  to 
some  occult  and  unknown  disease.^ 

101.  It"  is  enough  in  all  such  cases  that  the  wrongdoer 

knows,  or  is  bound  to  know  from  the  facts  of  which  he  is 

aware,  that  harm  will  follow,  or  is  likely  to  fol- 

,  ,  .      .  .     .         .        ,  -^  ,         Liability  for 

low,  his  improper  act  or  omission  m  the  under-  consequences 

stood  state  of  things.  The  conditions  to  the  t^>^^s  on  duty, 
harm  which  follows  are  before  him ;  danger  is  observable. 
This  is  again  returning  to  language  used  in  speaking  of  duty. 
Duty  exists  where  danger,  either  directly  or  tlu-ough  facts 
which  the  defendant  knows  or  ought  to  know,  is  observable. 
It  must  follow  that  duty  lasts  to,  and  includes  all  results 
flowing  naturally  from,  the  defendant's  wrongful  act  or  omis- 
sion ;  duty  equally  must  end  at,  and  exclude,  results  which 
happen  out  of  natural  course,  as  things  were  known  to  exist. 
And  liability  must  end  where  duty  ends ;  the  plaintiff  can 
have  no  right  towards  which  there  is  no  correlative  duty. 
The  doctrine  of  duty  then,  rightly  understood,  determines 
both  the  creation  and  the  termination  of  liability. 

102.  This  way  of  putting  the  case,  which  is  now  the  usual 
way,  puts  aside  the  persistent  doctrine  or  dogma  that  a  man 
intends  the  natural  and  probable  consequences  of  -  ,.  , 
his  conduct.  The  statement  is  not  only  unneces-  natural  conse- 
sary,  it  is  untrue  in  most  cases.  The  notion  1^®°°^^- 
appears  to  spring  from  an  idea  that  liability  for  the  conse- 
quences of  conduct  depends  upon  intention  to  bring  the  con- 
sequences to  pass  ;  for  which  there  is  no  authority.  There 
will  of  course*  be  intention,  since  every  psychic  act  or  omis- 
sion, as  we  have  seen,  necessarily  implies  intention.  But  the 
resulting  breach  of  duty  and  infringement  of  right  (where 
the  act  or  omission  was  wrongful)  may  not  have  been  in  the 
mind  at  all,  that  is,  may  not  have  been  intended ;  and  it  has 
never  been  supposed  to  be  necessary  to  say  that  the  result  is 

1  Compare  Stewart  v.  Ripon,  supra ;  Sharp  v.  Powell,  L.  R.  7  C.  P. 
258.  For  other  cases  involving  tlie  general  principle,  see  Vandenbnrgh 
V.  Truax,  4  Denio,  464  ;  McDonald  v.  Snelling,  14  Allen,  290  (defendant 
negligently  running  into  a  team  and  causing  the  horses  to  run  away  and 
collide  with  plaintiff's  sleigh)  ;  Farrant  v.  Barnes,  11  C.  B.  n.  s.  553. 


48  LAW  OF  TORTS.  [Sect.  8. 

intended  Avhere  it  follows  closely  upon  the  act  or  omis- 
sion. Liability  arises  in  the  case  because  the  misconduct 
caused  the  breach.  So  in  these  other  cases,  where  the  mis- 
fortune is  further  off  in  time  or  space.  The  question  simply 
is,  whether  the  defendant's  conduct  caused  the  harm.  The 
dogma  in  question  confuses  acts  and  omissions  with  their 
effect. 

103.  There  is,  or  may  be,  special  difficulty  where  the  train 
of  events  instead  of  going  on  in  nature,  or  through  human 

beings  acting  mechanically,  extends  through  the 
human  acts   of   men   conducting   themselves  freely  and 

agency.  without  constraint.     In  such  cases  it  appears  to 

be  necessary  that  the  intermediate  human  agencies  should 
act  in  accordance  with  the  purpose  of  the  one  further  back 
who  set  the  train  in  motion.  The  connection  between  the 
sufferer  and  such  person  would  be  broken  if  some  one,  or 
some  force  of  nature,  between  them  were  to  act  in  the  matter 
'  out  of  course,'  that  is,  in  a  way  not  to  be  expected ;  the 
wrongdoer  can  owe  no  duty  to  a  person  who  sustains 
damage  from  the  wrong,  unless  in  natural  or  expected 
cour.se.i 

104.  But  if  the  intermediate  persons,  few  or  many,  act  in 
accordance  with  the  purpose  of  the  one  back  of  them,  though 
they  be  not  his  agents  or  his  servants,  he  will  be  liable  for 
damage  done,  not  because  the  acts  of  the  intermediate  per- 
sons are  in  fact  his  acts,  but  because  he  has,  legally  speak- 
ing, caused  the  damage.  He  owed  a  duty  to  the  person 
who  should  ultimately  fulfil  his  purpose ;  looking  forward 
to  such  action  created  the  duty.  And  that  duty  he  has 
violated. 

105.  There  is  some  question  whether  the  train  thus  set  in 
motion,  and  continued  in  motion  by  an  independent  set  of 
persons,  should  be  inherently  dangerous  ;  it  is  certain  that  if 
it  is,  liability  runs  back  to  the  person  who  started  it.  Thus 
A,  who  is  a  manufacturer  of  drugs,  puts  a  quantity  of  bella- 
donna, a  violent  poison,  into  jars  which  he  labels  dandelion, 

1  See  such  cases  as  Carter  v.  Towne,  103  Mass.  507;  Davidson  v. 
Nichols,  11  Allen,  51i;  Insurance  Co.  v.  Tweed,  7  Wall.  44,  52. 


Sect.  9.]  GENERAL   THEORY   AND   DOCTRINE.  49 

a  harmless  drug  ;  he  sells  the  same  to  B,  a  wholesale  dealer ; 
B  in  turn  sells  to  C,  a  retail  dealer ;  and  C  sells  to  D,  who 
buys  the  drug  for  his  own  use  as  dandelion,  takes  it  as  such, 
and  is  injured.  A  is  liable  to  D.^  The  drug  sold  (in  accord- 
ance with  A's  purpose)  was  inherently  dangerous ;  but  there 
is  authority  for  saying  that  the  result  would  be  the  same 
though  the  thing  in  question,  as  for  instance  a  folding  bed, 
were  not  inherently  dangerous^  but  dangerous  only  for  some 
vice  in  it,^ 

106.  The  principle  in  question  applies  generally  to  all 
kinds  of  tort,  but  as  a  matter  of  fact  it  seldom  finds  expres- 
sion except  in  cases  of  negligence  ;  some  phases  of  it  are 
almost  of  necessity  phases  of  negligence.  The  consequence 
is  that  the  subject  must  be  considered  particularly  under  that 
head,  and  it  will  not  be  considered  farther  here.^ 

§  9.   Of  Death  of  Plaintiff  or  Defendant. 

107.  Liability  for  tort  ma}^  come  to  an  end  in  a  very  differ- 
ent way  from  any  capable  of  being  stated  in  terms  of  the 
cessation  of  duty;  '  actio  personalis  moritur  cum  Rule  of  actio 

persona.'     Expressing  the  rule  in   terms  of   the  personalis: 
^  ,1  1  c  1       .  •  origin  doubt- 

Roman   law,-  the   coui'ts   have  from   early  times  fui :  modiflca- 

declared  that  (most)  torts  cease,  with  the  death  *^°^^- 

of  either  of  the  parties  to  them,  to  carry  liability.^     Both  the 

origin  and  the  justification  of  this  rule  are  matter  of  doubt; 

but  no  common  Jaw  rule  lias  been  more  steadily  maintained, 

except  as   statute  has  affected  it.     It   matters  not  that  an 

1  Thomas  v.  Winchester,  6  N.  Y.  397 ;  Cases,  567. 

2  Lewis  V.  Terry,  43  Pac.  Rep.  398  (Cal.). 
8  See  post,  pp.  397,  398. 

*  See  e.  g.  Bowker  r.  Evans,  15  Q.  B.  Div.  565,  death  of  plaintiff. 
The  rule  is  not  confined  to  torts.  The  action  for  breach  of  promise  of 
marriage  '  moritur  cum  persona.'  Fin  lay  v.  Chirney,  20  Q.  B.  Div.  494  ; 
Hovey  v.  Page,  55  Maine,  142  ;  Lattimore  v.  Simmons,  13  Serg.  &  R.  183  ; 
Stebbins  v.  Palmer,  1  Pick.  71  ;  Smith  v.  Sherman,  4  Cush.  408.  Aliter, 
if  special  damage  to  property  is  caused.  Finlay  v.  Chirney  ;  Stebbins  v. 
Palmer.     See  infra. 

4 


50  LAW  OF  TORTS.  [Sect,  ft 

action  may  already  have  been  set  on  foot,'  the  rule  applies 
with  absolute  impartiality. 

108.  It  has  been  suggested  that  the  rule  may  have  come 
into  operation  when  the  processes  of  the  courts  were  finally 
putting  aside  the  right  of  private  redress  for  wrongs  which 
had  prevailed  under  what  may  be  called  customary  law.  '  A 
process  which  is  still  felt  to  be  a  substitute  for  private  war 
may  seem  incapable  of  being  continued  on  behalf  of  or 
ao-ainst  a  dead  man's  estate.'  ^  Whether  this  be  true  or 
not  of  cases  of  the  death  of  the  wrongdoer,  —  it  would  not 
explain  the  effect  of  death  by  the  injured  person,  —  reasons 
were  found  even  in  early  times  which  brought  about  legisla- 
tion to  limit  any  possible  application  of  the  rule  to  cases  in 
which  the  tort  directly  affected  the  injured  man's  property.^ 
Legislation  of  the  kind  began  as  early  as  the  year  1330,  which 
gave  an  action  for  'goods  and  chattels  of  .  .  .  testators 
carried  away  in  their  life;  '  and  twenty-one  years  later  the 
same  right  of  action  was  given,  by  construction  of  statute, 
to  administrators.*  These  statutes  have  been  adopted  in 
America ;  and  to  them  (as  in  England)  have  been  added 
statutes,  varying  more  or  less  in  the  different  States,  in  favor 
of  the  nearest  kindred  of  persons  killed  by  misconduct  of 
others.  The  latter  statutes,  however,  have  no  place  in  a 
consideration  of  General  Doctrine. 

1  Bowker  v.  Evans,  supra,  an  arbitration. 

2  Pollock,  Torts,  55,  2d  ed.,  to  which  is  added  a  dictum  by  Newton, 
C.  J.,  from  Year  Book  19  Hen.  6,  pi.  10  (a.  d.  1440-1)  :  '  If  one  doth  a 
trespass  to  me  and  dieth,  the  action  is  dead  also,  because  it  should  be 
inconvenient  to  recover  against  one  who  was  not  party  to  the  wrong.' 

^  '  The  distinction  seems  to  be  between  causes  of  action  which  affect 
the  estate,  and  those  which  affect  the  person  only.  .  .  .  According  to 
this  distinction,  an  action  for  the  breach  of  a  promise  of  marriage  would 
not  survive  ;  for  it  is  a  contract  merely  personal ;  at  least  it  does  not  nec- 
essarily affect  property.  .  .  .  The  injury  complained  of  is  violated  faith, 
more  resembling  in  substance  deceit  and  fraud  than  a  mere  common 
breach  of  promise.'  Wilde,  J.,  in  Stebbins  v.  Palmer,  1  Pick.  71,  79.  If 
it  be  said  that  the  same  is  true  of  many  other  contracts  which  do  survive, 
the  only  answer  perhaps  is,  that  a  rule,  like  that  of  actio  personalis,  not 
founded  in  sound  reason,  will  be  apt  to  be  departed  from  more  or  less. 

*  4  Edw.  3,  c.  7  ;  25  Edw.  3,  st.  5,  c.  5.  See  Phillips  v.  Homfray,  24 
Ch.  Div.  439. 


Sect.  10.]  GENERAL   THEORY   AND   DOCTRINE.  51 


§  10.   Of  Assignability  of  Actions  for  Tort. 

109.  Actions  for  tort  not  harmful  to  property  are  not 
assignable.^  Various  reasons  have  been  given,  the  common 
one  being  that  such  actions  are  peculiarly  per-  Ground  of 
sonal.  How,  it  is  asked,  can  another  represent  '^^^®- 
one  whose  good  name  has  been  tarnished,  or  whose  haj^pi- 
ness  has  been  ruined  ?  ^  Perhaps  the  explanation  really  runs 
back  to  the  time  when  torts  liad  not  yet  detached  themselves 
from  crimes.  Crimes  of  course  were  always  personal ;  toi'ts 
continued,  after  the  separation,  to  be  regarded  as  of  the  same 
nature,  except  where  damage  was  done  to  property.  It  may 
also  be  noticed  that  things  which  are  not  descendible,  as  torts 
are  not,^  are  not  ordinarily  alienable.  Torts  however  which 
harm  property,  as  they  survive,  are  assignable.^  So  too  are 
judgments  in  damages  for  tort.^ 

1  Rice  V.  Stone,  1  Allen,  566 ;  Stone  v.  Boston  R.  Co.,  7  Gray,  539; 
Howard  v.  Crowther,  8  M.  &  W.  603. 

2  See  Rice  v.  Stone  and  Howard  v.  Crowther,  supra. 

3  Supra,  p.  49. 

*  Rice  V.  Stone,  supra. 

*  Id. ;  Stone  v.  Boston  R.  Co.,  7  Gray,  539.     As  to  verdicts  see  Rice 
y.  Stone. 


SPECIFIC    TORTS. 

[The  shading  of  one  topic  into  another  is  the  ground  of  arrange- 
ment. In  Part  I.  Deceit  shades  off  into  Slander  of  Title,  and 
thus  into  Malice.  Malice  in  turn  shades  off  into  the  first  of  the 
topics  of  Part  II.,  Unlawful  Acts.  These  last  shade  into  the 
topic  of  Part  III.,  Negligence.] 


PART   I. 

LAWFUL  ACTS  DONE   BY  WRONGFUL  MEANS 

OR   OF   MALICE. 

BREACH   OF   DUTY   TO   REFRAIN   FROM 
FRAUD   OR   MALICE. 


CHAPTER  I. 

1.    Laivfid  Acts  done  by  Wronx/ful  Means  :  Fraud. 

DECEIT. 

Statement  of  the  duty.  A  owes  to  B  the  duty  not  to 
mislead  him  to  his  damage  by  false  and  fraudulent  repre- 
sentations. 

Deceit  may  be  a  ground  of  defence  to  the  enforcement  of 
a  contract,  and  also  a  ground  for  proceedings  by  the  injured 
party  to  rescind  a  contract.  In  such  cases  the  Deceit  in  cases 
same  facts,  apart  from  the  wrongdoer's  knowl-  of  contract, 
edge  of  the  actual  state  of  things,  are  necessary  for  establish- 
ing the  deceit  as  are  necessaiy  to  an  action  of  or  for  deceit.^ 
Hence,  with  the  exception  mentioned,  authorities  concerning 
the  proof  of  deceit  in  cases  of  contract  are  authorities  in 
regard  to  actions  for  damages  by  reason  of  deceit. 

The  action  at  law  for  damages  by  reason  of  deceit  is  called 
indifferently  an  action  of  deceit  or  an  action  for  deceit. 

§  1.   What  must  be  Pro\t:d. 

110.    In  ordef  to  establish  a  breach  of  the  duty  above  stated, 
and  to  entitle  B  to  civil  redress  therefor,  B,  unless 
he  come  within  one  of  the  qualifications  to  the  faltsVbe 
rule,  must  make  it  appear  to  the  court  (1)  that  A  P;°^\^^g°3°'^^' 
has  made  a  false  representation  of  material  facts ; 

(2)  that  A  made  the  same  with  knowledge  of   its  falsity; 

(3)  that  B  was  ignorant  of  its  falsity,  and  believed  it  to  be 
true;  (4)  that  it  was  made  with  intent  that  it  should  be  acted 
upon  by  B ;  (5)  that  it  was  acted  upon  by  B  to  his  damage.^ 

1  King  V.  Eagle  Mills,  10  Allen,  548  ;  Wilder  v.  De  Cou,  18  Minn.  470. 
a  Pasley  v.  Freeman,  3  T.  R.  51 ;  Cases,  1. 


56  LAW   OF   TORTS.  [Part  I. 

But  each  of  these  general  elements  of  the  right  of  redress 
must  be  separately  examined  and  explained,  and  any  qualifi- 
cations to  the  same  presented.  The  designation  of  the 
parties  as  A  and  B  may  now  be  dropped,  and  B  will  be 
spoken  of  as  the  plaintiff,  and  A  as  the  defendant. 

§  2.   Of  the  Representation. 

111.  It  is  proper  first  to  consider  the  meaning,  in  the  law, 

of  the  term  '  representation,'  and  thus  to  ascertain 
Definition.  ^^^^  ^^^^  foundation  of  the  action  under  consider- 
ation. Accordingly,  a  representation  may  be  defined  to  be 
a  statement  or  an  act,  creating  a  clear  impression  of  fact 
upon  the  mind  of  another,  sufficient  to  influence  the  conduct 
of  a  man  of  ordinary  intelligence. 

112.  As  a  matter  of  language  there  may  be  no  difference 

whatever  between  a  representation  and  a  war- 
fioHiS'  I'^^nty.  The  statement  '  This  horse  is  sound ' 
guished  from  j^^ay  be  the  one  or  the  other.  The  following  ex- 
warran  y.  ^Q^^r^i  distinctions  however  will  suggest  certain 
tests  for  deciding  cases  to  which  they  are  applicable  :  A  war- 
ranty is  always  annexed  to  some  contract  and  is  part  of  that 
contract ;  the  warranty  is  indeed  a  contract  itself,^  though  a 
subsidiary  one,  dependent  upon  the  main  agreement.  A  rep- 
resentation however  is  in  no  case  more  than  inducement  to  a 
contract ;  it  is  never  part  of  one.  To  carry  it  into  a  contract 
would  be  to  make  it  a  warranty.  And  again,  there  may  be  a 
representation,  such  as  the  law  will  take  cognizance  of,  though 
no  contract  was  made  or  attempted  between  the  one  who 
made  the  representation  and  the  one  to  whom  it  was  made. 

113.  This  would  be  sufficient  to  distinguish  the  two  terms, 
if  it  were  necessary  to  a  warranty  that  it  should  be  expressly 
annexed  to  the  contract-in-chief ;  but  that  is  not  necessary, 
and  that  fact  sometimes  creates  difficulty.  In  written  con- 
tracts there  can  seldom  be  difficulty  in  determining  whether 

1  Brownlie  v.  Campbell,  5  App.  Cas.  925,  953,  Lord  Blackburn.  An 
affirmative  warranty  is  ordinarily  an  artificial  contract  of  the  law.  Ante, 
p.  27,  note. 


Chap.  I.  §  2.]  DECEIT.  57 

a  particular  statement  is  a  warranty  or  a  representation 
(wlien  it  is  either),  for  the  warranty  must  be  part  of  the 
writing,  since  a  warranty  must  be  part  of  the  contract-in- 
chief,^  and  it  will  either  be  directly  incorporated  into  the 
general  writing,  or  be  so  connected  with  it  by  apt  language  ^ 
that  there  can  be  no  doubt  of  the  intention  of  the  parties. 

114.  The  difficulty  is  with  oral  contracts,  and  then  in 
most  cases  only  in  regard  to ^  sales  of  personalty.  Whether 
the  statement  in  question  is  a  representation  or  a  warranty 
is  however  treated  as  a  question  of  intention ;  ^  and  an  inten- 
tion to  create  a  warranty  is  shown,  it  seems,  by  evidence  of 
material  statements  of  fact  made  as  an  inducement  to  the 
sale,  at  the  time  the  bargain  was  effected,  or  during  nego- 
tiations therefor  which  have  been  completed  in  proper  reli- 
ance upon  the  statements  ;  ^  provided  nothing  at  variance 
with  the  inference  of  intention  is  sliown.^  If  the  statement 
was  not  so  made,  it  is  a  representation  if  it  is  anything. 
What  difficulty  remains  is  in  the  application  of  the  rule ; 
and  that  is  a  matter  for  works  treating  of  contracts  or 
warranty  in  detail. 

115.  A  warranty  of  fact  however,  when  broken,    warranty 
ma}^  be  treated,  it  seems,  as  a  case  of  misrepre-    representa- 
sentation,  giving   rise  to  an  action  for  deceit,  if    tion. 

1  Kain  v.  Old,  2  B.  &  C.  627. 

2  A  warranty  may  indeed  be  implied,  i.  e.  arise  without  language  or 
intention,  but  such  cases  are  aside  from  the  present  purpose.  The  diffi- 
culty under  consideration  concerns  the  effect  of  language  used. 

8  There  may  be  no  intention,  in  point  of  actual  fact,  to  create  a  war- 
ranty ;  but  intention  may  be  inferred  beyond  dispute  by  what  was  said 
or  done.  It  is  therefore  more  properly  a  question  of  the  interpretation 
or  meaning  of  words  or  conduct  than  of  intention  in  the  sense  of  what 
was  in  the  mind. 

*  See  Harrington  v.  Smith,  138  Mass.  92,  98 ;  Hopkins  v.  Tanqueray, 
15  C.  B.  130.  This  will  explain  many  cases  in  which  it  is  held  that  a 
vendor  of  personalty  is  liable  for  his  false  representations  though  he 
believed  them  to  be  true.  See  Sledge  v.  Scott,  56  Ala.  202  ;  post,  p.  70. 
In  such  cases  there  is  in  reality  a  warranty,  and  hence  the  vendor's  knowl- 
edge is  immaterial,  though  the  case  is  not  always  put  on  the  ground  of 
warranty. 

^  Such  appears  to  be  the  effect  of  the  cases.    See  Benjamin,  Sales,  §  613. 


58  LAW  OF  TOUTS.  [Part! 

the  elements  necessary  to  liability  in  a  proper  case  of  mis- 
representation are  present ;  ^  and  this,  it  is  believed,  is  true 
whether  the  warranty  was  express  or  implied.  Indeed,  in 
case  of  implied  warranty  the  breach  may  possibly  be  enough 
to  make  the  case  one  of  deceit.^  This  reduces  the  matter 
to  a  question  of  the  form  of  action.  But  it  is  very  doubtful 
whether  an  action  based  on  deceit  could  be  maintained  where 
the  evidence  showed  nothing  but  a  breach  of  warranty.^ 
That  would,  in  the  language  of  pleading,  be  a  variance ;  the 
action  should  be  on  the  warranty  as  such. 

116.  Consider  now  the  definition  above  given  of  the  term 

'  representation.'     A  representation  must  consist  in  '  a  state- 

.  ,  .  ^  ment  or  an  act.'  There  are,  it  is  true,  cases  in 
Analysis  of 

the  definition  whicli  legal  conscquenccs  may  attend  absolute 
tatioa^^Tta^e-  silence  ;  but  there  are  very  few  cases  *  in  which  an 

ment  or  act :  action  for  damages  on  account  of  silence  alone  can 
silence.  .        . 

be  maintained.     There  must  ordinarily  be  some 

additional  element  to  make  silence  actionable.     If  the  silence 

consists  in  withholding  part  of  the  truth  of  a  statement,  it  may 

be  actionable,  as  will  be  seen  later  ;  but  in  such  a  case  silence 

is  properly  speaking,  only  part  of  the  representation.     The 

silence  amounts  to  saying  that  what  has   been  stated  is  all. 

There  is  a  duty  to  speak  in  such  a  case,  and  it  is  only  when 

there  is  such  a  duty  that  silence  has  any  legal  significance. 

117.  Indeed,  even  passive  concealment,  that  is,  intentional 
withholding  of  information,  when  not  attended  with  any 
Passive  con-  active  Conduct  tending  to  mislead,  is  insufficient, 
ceaiment.         according  to  the  general  current  of  common-law 

1  See  Indianapolis  R.  Co.  v.  Tyng,  63  N.  Y.  653. 

2  White  V.  Madison,  26  N.  Y.  117,  124;  Jefts  v.  York,  10  Cush.  392; 
Johnson  v.  Smith,  21  Conn.  627 ;  Collen  v.  Wright,  8  El.  &  B.  647 ; 
Randell  v.  Triinen,  18  C.  B.  780 ;  Seton  v.  Lafone,  18  Q.  B.  D.  139, 
affirmed  on  appeal,  19  Q.  B.  D.  68;  post,  p.  70. 

8  Mahurin  r.  Harding,  28  N.  H.  128  ;  Cooper  v.  Landon,  102  Mass.  58; 
Larey  v.  Taliafferro,  57  Ga.  443. 

*  Silence  might  be  ground  for  an  action  in  deceit  by  a  cestui  que  trust 
against  his  trustee,  it  seems,  in  a  transaction  between  the  two  in  regard 
to  the  trust  property  to  the  damage  of  the  former. 


Chap.  I.  §2.]  DECEIT  59 

authority,  to  create  a  cause  of  action.  For  example :  The 
defendant,  knowing  of  the  existence  of  facts  tending  to 
enhance  the  price  of  tobacco,  of  which  facts  the  pLiintiff  is 
ignorant  to  the  defendant's  knowledge,  buys  a  quantity  of 
tobacco  of  the  plaintiff  at  current  prices,  withholding  infor- 
mation of  the  facts  referred  to  (no  question  being  asked  to 
bring  them  out).  This  is  no  breach  of  duty  to  the  plaintiff.^ 
Again :  The  defendant  buys  of  the  plaintiff  land  in  which 
there  is  a  mine,  the  defendant  knowing  the  fact,  and  know- 
ing that  the  plaintiff  is  ignorant  of  it.  The  defendant  does 
not  disclose  the  fact  in  the  negotiations  for  the  purchase. 
This  is  no  breach  of  duty.^ 

118.    An  act  however,  attending  what  would  otherwise  be 
a  case  of  perfect  silence,  in  regard  to  the  fact  in  question, 
may  have   the   effect  to  create  a  representation,  ^^^^  accom- 
and  lay  the  foundation,  so  far,  for  an  action ;  ^  panying 
but  the  act  must  be  significant  and  misleading.* 
For  that  purpose  however  it  may  be  slight ;  ^  a  nod  of  the 
head  may  no  doubt  be  enough,  so  may  a  withdrawing  of 
attention  from  some  point  to  which  it  is  being  or  about  to  be 
directed. 

1  Laidlaw  v.  Organ,  2  Wheat.  178.  See  Prescott  v.  Wright,  4  Gray, 
461,  461;  Kintzing  v.  McEkath,  5  Barr,  407;  Smith  v.  Countryman, 
30  N.  Y.  655,  670,  671 ;  People's  Bank  v.  Bogart,  81  N.  Y.  101  ;  Hanson 
V.  Edgerley,  29  N.  H.  343  ;  Fisher  v.  Budlong,  10  R.  I.  525,  527;  Hadley 
V.  Clinton  Importing  Co.,  13  Ohio  St.  502  ;  Williams  v.  Spurr,  24  INIich. 
335 ;  Law  v.  Grant,  37  Wis.  548 ;  Cogel  v.  Kinseley,  89  111.  598 ;  Frenzel 
V.  Miller,  37  Ind..l;  Smith  v.  Hughes,  L.  R.  6  Q.  B.  597;  Evans  v.  Car- 
rington,  2  De  G  ^  ci  J.  481  ;  Peek  v.  Gurney,  L.  R.  9  H.  L.  377,  Lord 
Cairns;  Coaks  v.  Boswell,  11  App.  Cas.  232,  Lord  Selbome.  'Whatever 
may  he  the  case  in  a  court  of  morals,  there  is  no  legal  obligation  on  the 
vendor  to  inform  the  purchaser  that  he  is  under  a  mistake,  not  induced 
by  the  act  of  the  vendor.'  Blackburn,  J.,  in  Smith  v.  Hughes,  supra. 
Contra  in  some  of  the  States.  Patterson  v.  Kirkland,  34  Miss.  423  ; 
Cecil  V.  Spurgur,  32  Mo.  462;  Lunn  v.  Shermer,  93  ^\  Car.  164;  Merritt 
V.  Robinson,  35  Ark.  483. 

2  Fox  V.  Mackreth,  2  Bro.  C.  C.  400,  420,  a  leading  case  in  equity 
See  Turner  v.  Harvey,  Jacobs,  169,  178,  Lord  Eldon. 

*  Laidlaw  v.  Organ,  supra ;  Hadley  v.  Clinton  Importing  Co.,  supra. 

*  Id. 

*  Turner  v.  Harvey,  Jacob,  at  p.  178. 


60  LAW   OF   TORTS.  [Part  I. 

119.  To  make  a  representation,  the  statement  or  act  must 
create  a  '  clear  impression ; '  the  plaintiff  does  not  make  out 
Clear  impres-  ^^^^  alleged  breach  of  duty  if  his  evidence  shows 
sion.  only  a  statement  or  act  of  vague  or  indefinite 
import.  Such  statements  or  acts  would  have  little  effect 
upon  a  man  of  average  intelligence  ;  and  hence,  whatever 
the  actual  effect  produced  in  a  particular  case,  the  law  takes 
no  notice  of  them.  For  example  :  The  defendant,  a  vendor 
of  land,  points  to  a  certain  tree  as  the  probable  boundary  of 
his  premises,  and  the  plaintiff  buys  relying  upon  that  state- 
ment as  a  statement  of  the  actual  boundary.  The  defendant 
is  not  liable  in  damages  for  the  loss  sustained  by  the 
plaintiff.^ 

120.  The  representation  need  not  however  be  created  by 
language ;  there  is  no  distinction  between  an  impression 
Words  not  Created  by  words  and  one  created  by  acts.^  Lan- 
necessary.  guage  is  only  one  of  the  means  of  conveying 
tliought.  A  thought  may  often  be  conveyed  as  distinctly  by 
an  act ;  enough,  so  far,  that  a  clear  impression  is  created 
upon  the  mind.  If  the  impression  is  capable  of  being  stated 
as  a  fact,  and  is  such  as  might  govern  the  conduct  of  an 
average  man  in  regard  to  some  change  of  position  in  con- 
templation, it  satisfies  the  rule. 

121.  It  follows  that,  to  constitute  a  representation,  it  is  not 
necessary,  even  when  language  alone  is  used,  that  the  state- 
ments should  be  made  in  terms  expressly  affirming  the  exist- 
ence of  some  fact.  If  the  statement  be  such  as  would 
naturally  lead  the  plaintiff,  as  a  man  of  average  intelligence, 
to  suppose  the  existence  of  a  particular  state  of  facts,  that  is 
as  much  as  if  statements  had  so  been  made  in  exact  terms.^ 

122.  It  should  be  noticed  that  there  is  a  difference  in  fact 
between  vagueness  and  ambiguity.     Vagueness,  as  we  have 

1  See  Halls  v.  Thompson,  1  Smedes  &  M.  443. 

2  Lobdell  V.  Baker,  1  Met.  193;  Coolidge  v.  Brigham,  id.  547,  551; 
Mizner  v.  Kussell,  29  Mich.  229 ;  Paddock  i\  Strobridge,  29  Vt.  470. 
These  are  cases  of  warranties,  but  the  principle  is  the  same. 

8  Donovan  v.  Donovan,  9  Allen,  140 ;  Rhode  v.  Alle\-,  27  Texas,  443, 
446  ;  Lee  v.  Jones,  17  C.  B.  n.  s.  482 ;  s.  c.  14  C.  B.  n.  s.  386. 


Chap.  I.  §  2.]  DECEIT.  61 

seen,  is  fatal  to  the  idea  of  a  legal  representation  ;  but  ambiguity 

in  an  impression  may  only  mean  that  more  than 

one  fact  has  been  impressed  upon  the  mind,  not  anf  ambigu- 

that  none  at  all  has  been  left  there.     In  such  a  ity  distin- 

,.11  .1  .        .      guisned. 

case  as  this  the  only  question  that  can  arise  in 

reason  or  in  law  is  whether,  assuming  the  facts  impressed  to 

be  clear  and  definite,  the  plaintiff  reasonably  acted  upon  the 

one  which  was  false.     That  he  did  this  it  devolves  upon  him 

to  show.     For  example  :  The  defendants  issue  a  prospectus 

in  regard  to  a  company,  in  process  of  formation  to  take  over 

certain  iron  works,  which  prospectus  contains  the  following 

statement :  '  The  present  value  of  the  turnover  or  output  of 

the  entire  works   is  a  million  pounds  sterling  per  annum.' 

This  statement  might  mean  either  that  the  works  had  actually 

turned  out  more  than  a  million's   worth  at  present   prices 

within  a  year  or  yearly,  or  only  that  the  works  were  capable 

of  turning  out  so  much ;  in  the  former  case  it  is  false,  in  the 

latter  it  might  be  true.     The  plaintiff,  who  has  been  induced 

to  buy  shares  in  the  undertaking,  must  show  that  he  acted 

upon  the  statement  in  the  sense  in  which  it  was  false. ^ 

123.    The  impression  created  must  be  of  a  '  fact,'  a  word 
which  imports   something  capable  of   being   known.      Does 
this  mean,  in  the  case  of  a  statement,  that  what 
is  stated  must  be  stated  as  a  fact  ?     There  is  some  f^fn^e^c^es^  ° 

confusion  in  the  books   in  regard  to  this  ques-  sary -opinion 

^  •'■as  fact, 

tion.     It  is  commonly  said  that  the  law  takes  no 

notice  of  statements  of  opinion,  or  of  statements  in  regard  to 
future  events  or  conduct  short  of  contract.  But  that  is  by  no 
means  universally  true  ;  and  even  when  true  its  truth  does 
not  rest  upon  the  ground  that  such  statements  are  not  state- 
ments of  fact.  As  a  matter  of  form  it  is  true  that  statements 
of  opinion  and  statements  relating  to  the  future  ordinarily 
are  not  statements  of  fact ;  but  in  reality  they  always  involve 
and  imply  statements  of  fact.  The  fact  involved  is  indeed 
a  mental  fact,  to  wit,  the  state  of  mind  —  the  opinion,  belief, 
or  intention — of  the  person  speaking.     But  a  mental  fact  is 

1  Smith  V.  Chadwick,  9  App.  Cas.  187;  s.  c.  20  Ch.  Div.  27. 


62  LAW  OF  TORTS.  [Part  L 

as  truly  a  fact  as  a  non-mental  fact ;  the  person  making  it 
knows  whether  it  is  true  or  false.  He  knows  whether  his  belief 
or  intention  is  as  he  has  stated.  Anything  capable  of  being 
known  is  a  fact,  as  the  law  looks  upon  the  subject ;  and  a  men- 
tal fact  is  as  capable  of  being  known  as  a  non-mental  fact. 

124.  The  result  is  that  when  a  man  states  that  his  opinion, 
belief,  or  intention  is  so  and  so,  he  has  virtually  and  in  real 
effect  stated  that  he  knows  of  nothing  to  make  his  statement 
of  opinion,  belief,  or  intention  a  sham.  If  then  the  law  requires 
that  what  is  stated  should  be  stated  as  a  fact,  the  case  in  ques- 
tion fulfils  the  requirement;  the  statement  is  in  effect  —  and 
that  is  the  real  test  —  a  statement  of  fact.  For  example  :  The 
defendant,  seller  of  a  hotel  under  lease,  says  to  the  plaintiff, 
the  buyer,  that  the  tenant  is  a  'most  desirable  tenant.' 
Assuming  that  what  is  '  desirable '  in  such  a  case  is  matter 
of  opinion,  still  the  statement  is  in  effect  a  statement  of 
fact,  for  the  seller  'impliedly  states  that  he  knows  facts 
which  justify  his  opinion.'  i  Again  :  The  defendant,  a  cattle 
dealer,  selling  cattle  to  the  plaintiff,  states  that  he  is  of 
opinion  that  the  cattle  will  weigh  900  lbs.  and  upwards  per 
head.  This  in  effect  is  a  statement  of  fact,  to  wit,  that  the 
defendant  knows  nothing  to  make  the  opinion  a  sham.2 

125.  These  are  cases  of  statements  (in  the  form)  of  opin- 
ion ;  but  it  is  obvious  that  statements  in  regard  to  the  future 
stand  upon  the  same  footing.  Thus,  if  a  person  were  to  say 
that  a  certain  ship  '  will  arrive  to-morrow,'  that  would  amount 
to  a  statement  that  he  knew  nothing  to  the  contrary,  and 
hence  would  be  a  statement  of  fact.  So  a  promise  to  pay 
for  property  bought  imports  a  statement  of  intention  to  pay ; 
and  intention  is  a  matter  of  fact.^ 

126.  It  is  clear  then  that  the  contrast  usually  drawn  or 
suggested  is  a  false  one.'^      The  true  contrast  is  suggested 

1  Smith  V.  Land  &  House  Corp.,  28  Ch.  Div.  7 ;  Cases,  26,  33,  note. 

2  Birdsey  v.  Butterfield,  34  Wis.  52. 

8  See  Karberg's  Case,  1892,  3  Ch.  1,  11,  Lindley,  L.  J. 

*  See  for  instance  American  Bank  v.  Hammond,  25  Col.  367 ;  Whiting 
V.  Price,  169  Mass.  576  ;  s.  c.  172  Mass.  240  (statements  relating  to  the 
value  of  a  bond)  ;  Andrews  v.  Jackson,  168  Mass.  266 ;   Stubbs  v.  John- 


Chap.  I.  §  2.]  DECEIT.  63 

by  the  following  paragraph;  it  is  between  things,  whether 
put  as  fact  or  as  opinion,  belief,  or  intention.  False  contrast 
which  are  persuasive  of  action,  and  things  which  Opinion  f  the 

are  not.  *^^^  contrast. 

127.  The  statement  or  act  must  be  one  '  sufficient  to  influ- 
ence the  conduct  of  a  man  of  ordinary  intelligence.'     The 
meaning  of  this  rule  however,   like  that   of  the  what  was 
one  just  considered,  is  in  some  particulars  a  mat-  mitt°havr 
ter  of  doubt.     Thus,  in  the  sale  of  goods  '  simplex  been  sufficient 
commendatio  non  obligat.'     But  what  is  'simplex  conductT  ^ 
commendatio '  ?     A  simple  statement  of  value  by  examples. 

a  vendor  is  a  clear  case  on  the  one  hand ;  a  plain  statement 
of  fact  going  to  make  up  value,  as  the  age  of  a  horse,  is  an 
equally  clear  case  on  the  other.  But  what  of  statements  fall- 
ing between  the  two  extremes  ?  ^  The  question  cannot  be 
definitely  answered ;  most  of  the  cases  that  arise  have  to 
be  determined  upon  the  special  facts  attending  them.  That 
is  to  say,  particular  rules  can  seldom  be  framed  to  reach 
them,  and  general  rules  have  only  a  remote  bearing  upon 
them. 

128.  One  or  two  limited  rules  however  have  been  laid 
down  touching  the  subject.  It  has  been  declared  by  able 
courts,^  and  denied  by  others,^  that  a  vendor's  false  state- 
ments of  what  an  article  or  a  tract  of  land  cost,  or  what  at 
some  time  it  has  brought,  or  what  has  been  offered  for  it, 
may  come  within  the  cognizance  of  the  law  like  ordinary 
representations   of    fact.      Some    courts   indeed   have    gone 

son,  127  Mass.  219  (a  note,  '  as  good  as  gold ') ;  Safford  v.  Grout,  120 
Mass.  20. 

1  The  requirement  that  the  statement  or  act  must  be  sufficient  to  in- 
fluence conduct,  and  its  sufficiency  if  it  does,  cover  the  common  case  of 
the  books  of  one  occupying  a  superior  position  for  information,  or  of  an 
expert,  of  which  Wilson  v.  Nichols,  72  Conn.  173,  is  a  late  examjile. 

2  V^an  Epps  v.  Harrison,  5  Hill,  63;  Page  v.  Parker,  43  N.  H.  3G3; 
Somersu.  Richards,  46  Vt.  170;  Ives  v.  Carter,  24  Conn.  392;  McAleer 
V.  Horsey,  35  Md.  439;  McFadden  v.  Robinson,  35  Ind.  24;  Morehead  v. 
Eades,  3  Bush,  121.     The  rule  in  these  cases  appears  to  be  the  better  one. 

8  Medbury  v.  Watson,  6  Met.  246;  Cooper  v.  Loveriiig,  106  Mass.  79  i 
Martin  v.  Jordan,  60  Maine,  531 ;  Bishop  v.  Small,  63  Maine,  12. 


64  LAW  OF  TORTS.  [Part  I. 

much  further  than  denying  this  proposition.-  But  it  is  gen- 
erally agreed  that  such  statements  when  made,  not  by  the 
vendor,  but  by  a  stranger,  may  constitute  actionable  misrep- 
resentations. For  example :  The  defendant,  not  being  the 
seller  of  the  property,  falsely  states  that  a  tannery  has  on  a 
previous  sale  brought  a  certain  price.  This  is  a  misrepre- 
sentation capable  of  sustaining  an  action  under  the  law.^ 

129.  It  is  settled  law  that  statements  of  the  income  of 
property,  or  of  the  rental  receipts  of  a  leasehold  estate  to  be 
sold,  constitute  representations  of  fact  which  may  safely 
be  acted  upon.  For  example :  Tlie  defendant,  seller  of  a 
public -house,  falsely  tells  the  buyer,  the  plaintiff,  that  the 
receipts  of  the  house  have  been  £160  per  month,  and  that 
the  tap  is  let  for  £82  per  annum,  and  two  rooms  for  £27 
per  annum.  This  is  a  false  representation  sufficient  to  influ- 
ence conduct,  and  not  a  mere  statement  of  value.^  So  pos- 
sibly if  the  statement  were  that  the  present  '  value '  of  the 
property  is  a  certain  sum  per  year ;  for  that  might  mean  its 
annual  return.* 

130.  Statements  concerning  the  pecuniary  condition  of  an 
individual,  as  for  instance  of  the  amount  of  property  he  owns, 
also  stand  upon  a  different  footing  from  statements  of  value ; 
they  may  govern  conduct.^  For  example  :  The  defendant 
says  to  the  plaintiff,  '  F  is  pecuniarily  responsible.  You  can 
safely  trust  him  for  goods  to  the  amount  of  £3,000.'  This  is 
a  representation  of  fact  which  may  govern  conduct.^ 

1  Holbrook  r.  Connor,  60  JNIaine,  576,  false  statements  concerning 
deposits  of  oil  in  lands,  and  that  the  lands  were  of  great  valne  for  mak- 
ing oil,  held  mere  opinion,  by  a  majority. 

2  Medbury  v.  Watson,  6  Met.  246. 

8  Dobell  V.  Stevens,  3  B.  &  C.  623;  Medbiiry  v.  Watson,  supra,  at  p. 
260 ;  Ellis  v.  Andrews,  56  K  Y.  83,  86.  See  Fuller  v.  Wilson,  3  Q.  B. 
58;  Lysney  v.  Selby,  2  Ld.  Raym.  1118. 

*  See  Smith  v.  Chadwick,  9  App.  Cas.  187,  ante,  p.  61.  But  see  Ellis 
V.  Andrews,  ut  supra. 

s  Pasley  v.  Freeman,  3  T.  R.  51;  Cases,  1;  Brock  v.  Garson,  117  Mich. 
550.  Such  representations  must  now  in  many  States  be  proved  by  writ- 
ing signed  by  the  party  to  be  charged. 

^  Pasley  v.  Freeman,  supra. 


Chap.  I.  §  2.]  DECEIT.  65 

131.  Again,  to  come  within  the  notice  of  the  law,  the  rep- 
resentation, if  not  made  Ijy  a  lawyer  to  a  layman,  or  by  a 

man  professino;  familiarity  with  the  law  to  one 

.  .  T       .  .  Representa- 

not  familiar  with  it,  must,  it  seems,  be  more  than  tions  of  the 

a  mere  representation  of  wli.it  the  law  is.  The  ^^^' 
reason  of  this  has  sometimes  been  said  to  be  that  all  men  are 
presumed  to  know  the  law ;  '  ignorantia  legis  neminem  excu- 
sat.'  But  it  may  be  doubted  whether  that  is  the  true  ground 
of  the  rule ;  if  it  were,  misrepresentation  of  the  law  by  one's 
legal  counsel  could  hardly  be  made  the  foundation  of  any 
liability.  A  better  reason  appears  to  be  that  the  law  is  un- 
derstood by  all  men  to  be  a  special  branch  of  learning ;  and 
hence  what  one  layman  may  say  to  another  will  seldom  have 
the  effect  to  alter  conduct.  But  whatever  the  ground,  the 
rule  appears  to  be  treated  as  settled.  For  example :  The  de- 
fendant misrepresents  the  legal  effect  of  a  contract  which 
he  thereby  induces  the  plaintiff  to  enter  into  with  him,  both 
parties  being  laymen.  The  defendant  is  not  liable  in  dam- 
ages for  the  loss  inflicted  upon  the  plaintiff.^ 

132.  As  the  language  above  used  however  plainly  im- 
plies, it  is  not  broadly  true  that  a  misrepresentation  of  the 
law  may  not  be  ground  for  an  action  of  deceit.  If  a  person 
having  superior  means  of  knowing  the  law,  and  professing 
to  know  it,  though  not  a  lawyer  and  not  professing  to  be, 
should  knowingly  give  false  information  of  it  in  order  to 
influence  the  conduct  of  one  ignorant  of  the  same,  there 
would  (so  far)  be  an  actionable  misrepresentation.  For 
example  :  An  immigrant,  lately  arrived  from  abroad,  meets 
an  old  citizen,  who  professes  familiarity  with  the  land  titles 
of  the  country,  and  proposes  to  sell  land  to  him,  to  which  he 
falsely  assures  the  immigrant  the  title  is  good.  This  is  a 
misrepresentation  capable  of  sustaining  an  action.^ 

1  Upton  V.  Tribilcock,  91  U.  S.  45.  See  Lewis  v.  Jones,  4  B.  &  C. 
506 ;  Beattie  v.  Ebury,  L.  R.  7  Ch.  777,  804  ;  Eaglesfield  v.  Londonderry, 
4  Ch.  Div.  693,  Jessel,  M.  R.,  explaining  the  nature  of  a  representation 
of  law.  And  see  West  London  Bank  v.  Kitsou,  13  Q.  B.  Div.  360,  363, 
Bowen,  L.  J. 

2  Moreland  v.  Atchison,  19  Texas,  303. 

5 


66  LAW   OF   TORTS.  [Part  I. 

133.  The  proposition  in  the  last  paragraph  may  be  gener- 
alized. In  ordinary  cases  the  representation  must  be  such 
Generaliza-  ^s  to  influence  the  conduct  of  a  man  of  average 
tion.  intelligence  ;  but  the  courts  have  not  turned  over 
the  simple  to  be  the  prey  of  rogues.  If  a  person  is  mentally 
deficient,  or  is  but  a  child,  the  courts  will  protect  him  from 
designing  men  where  they  would  leave  others  to  their  own 
folly.i 

134.  It  is  practically  the  same  thing  with  sajdng  that  the 
statement  or  act  should  be  sufficient  to  influence  conduct, 

to  say  that  it  should  be  material ;  which  latter  is 
whaUs^uffi-  the  usual  way  of  stating  the  rule.  But  whichever 
cient  to  influ-  ^yg^^y  ^|-^q  j.^^q  [g  stated,  it  is  not  to  be  understood 
ence  conduct.  -^  mi  i  •  c     i 

that  the  law  will  not  take  notice  of  the  case  if 

influences  from  other  sources  may  have  operated  upon  the 
plaintiff.  The  only  question  upon  this  point  is  whether  the 
representation  made  by  the  defendant  was  adequate  to  influ- 
ence, and  did  influence,  the  plaintiff,  not  whether  it  was  the 
sole  inducement  to  the  action  taken ;  if  it  was  sufficient  to 
influence  him,  and  did  influence  him  to  some  real  extent,  that 
is  enough.  The  courts  will  not  be  astute  to  find  that  one  of 
several  inducements  present  was  not  adequate  to  the  dam- 
age.^ 

135.  So  far  of  the  definition. 

136.  Further,  it  is  for  the  plaintiff  to  show  that  the  repre- 
sentation was  false.     But  a  representation  is  false  in  contem- 

■r^  ,  ■.     r.v     ijlation  of  law  as  well  as  of  morals  if  it  is  false  in 

Falsity  of  the    '-  .  . ;.     ,        . 

representa-      a  plain,  practical  sense  ;  if,  that  is  to  say,  it  would 

^°"'  be  apt  to  create  a  false  imj)ression  upon  the  mind 

of   the  average    man.     For  example :    The  prospectus   of   a 

company  about  to  construct  a  railway  describes  the  contract 

for  the  work  as  entered  into  at  '  a  price  considered  within  the 

^  See  post,  p.  78. 

2  James  v.  Hodsden,  46  Vt.  127;  Safford  v.  Grout,  120  Mass.  20; 
Jordan  i'.  Pickett,  78  Ala.  381;  Hale  v.  Philbrick,  47  Iowa,  217;  Mc- 
Aleer  v.  Horsey,  35  Md.  439 ;  Reynell  v.  Sprye,  1  De  G.  M.  &  G.  660. 


Chap.  I.  §2]  DECEIT,  67 

available  capital  of  the  company.'  The  fact  is  that  there  is  a 
merely  nominal  capital  of  X 500,000,  and  from  this  the  sum 
of  <£ 50,000  is  to  be  deducted  for  the  purchase  of  the  con- 
cession for  making  the  railway,  and  the  contract  price  for 
making  it  is  X420,000,  The  representation  is  false ;  the 
term  '  available  capital '  not  being  a  true  description  of  capital 
to  be  raised  by  borrowing.^ 

137.  An  example  in  contrast  with  the  foregoing  may  be 
stated.  A  prospectus  of  a  company  formed  for  buying  a 
certain  business  declares  that  the  price  of  purchase  is  a 
stated  sum,  and  that  no  'promotion  money'  is  to  be  paid 
to  the  directors  of  the  company  for  making  the  purchase. 
In  fact  the  sum  paid  for  the  business  is  somewhat  less  than 
the  sum  stated  in  the  prospectus,  and  shares  of  the  stock 
representing  the  difference  are  now  transferred,  part  to  the 
directors  of  the  company  who  effected  the  purchase,  which 
part  is  afterwards  transferred  to  the  company  on  complaint, 
and  part  to  the  solicitors  in  the  transaction.  This  is  not 
misrepresentation.^ 

138.  The  defendant  cannot  then  escape  liability  by  show- 
ing that  the  representation  was,  if  literally  taken,  true,  or 
true  if  taken  in  some  forced  or  unnatural  sense.^  So  too  the 
defendant  cannot  rely  upon  the  truth  of  the  actual  language 
used,  when  that  is  but  part  of  the  whole  state  of  facts,  and 
what  was  suppressed  would,  had  it  been  stated,  have  given 
to  the  language  used  a  contrary  effect.  If  the  part  suppressed 
would  have  made  the  part  stated  false,  there  is  a  false  repre- 
sentation.* For  example :  The  defendant,  desirous  of  buy- 
ing stock  of  the  plaintiff,  a  lady,  of  the  value  of  which  he 
knows  that  she  is  ignorant,  tells  her  of  a  fact  calculated  to 

1  Central  Ry.  Co.  v.  Kisch,  L.  R.  2  H.  L.  99.  Another  good  example, 
Smith  V.  Land  &  House  Corp.,  28  Ch.  Div.  7  ;  Cases,  26. 

2  Arkwright  i\  Newbold,  17  Ch.  Div.  301.  '  Nobody  was  ever  lucky 
enough  to  sell  a  property  without  having  some  considerable  deduction 
made  out  of  the  gross  price,  there  being  such  persons  as  auctioneers  and 
solicitors  to  be  paid.'     James,  L.  J. 

8  Mizner  v.  Kussell,  2f)  Mich.  229. 

<  Peek  V.  Gurney,  L.  R.  6  H.  L.  377,  403,  Lord  Cairns;  Central  Ry. 
Co.  V.  Kisch,  L.  R.'2  H.  L.  99,  113. 


68  LAAY  OF   TORTS.  [Part! 

depreciate  the  value  of  the  stock,  but  omits  to  disclose  to  her 
other  facts  within  his  knowledge  which  would  have  given 
cori-ect  information  upon  the  subject.  This  is  a  breach  of 
duty  to  the  plaintiff.^  Again :  The  plaintiff  being  about  to 
supply  the  defendant's  son  with  goods  on  credit,  asks  the 
defendant  if  the  son  has  property  to  the  value  of  .£300,  as 
the  son  has  asserted.  The  defendant  answers  in  the  affirma- 
tive, stating  that  he  has  advanced  the  sum  to  his  son,  but 
failing  to  state  that  his  son  has  given  his  promissory  note 
for  the  amount.  This  is  a  false  representation,  though  true 
in  a  literal  sense.^ 

§  3.     Of  Defendant's  Knowledge  of  Falsity. 

139.    In  order  to  entitle  a  plaintiff  to  recover  damages  for 
misrepresentation,  it  is  necessary,  by  the  more  general  current 
of  authority,  for  him  to  prove  that  the  defendant 
representa-      made  the  false  representation  fraudulently.       A 
^^°^'  contract  may,  indeed,  in  many  cases  be  rescinded, 

or  its  enforcement  successfully  resisted,  for  an  innocent  mis- 
representation, that  is  to  say  for  a  false  representation  justifi- 
ably believed  to  be  true  at  the  outset  by  the  party  who  made 
it ;  ^  but  if  damages  are  sought,  fraud  in  some  sense  must  be 
proved,   whether  at  law  or  in  equity.*     Negligence,  by  the 

1  :Mallory  v.  Leach,  35  Vt.  156. 

2  Corbett  v.  Brown,  8  Bing.  33  ;  Brock  v.  Garson,  117  Mich.  550. 

3  Arkwright  v.  Newbold,  17  Ch.  Div.  301 ;  Redgrave  v.  Hurd,  20  Ch 
Div.  1;  Blackman  v.  Johnson,  35  Ala.  252;  Sledge  v.  Scott,  56  Ala.  202 

■*  Case  r.  Boughton,  11  AVend.  106,  108;  Morgan  v.  Skiddy,  62  X.  Y 
319  ;  Cragie  v.  Hadley,  99  X.  Y.  131 ;  Code  v.  Cassiday,  138  Mass.  437 
Bowker  v.  Belong,  141  Mass.  315 ;  Mahurin  v.  Harding,  28  N.  H.  128 
Iloldom  V.  Ayer,  110  111.  448;  Lamm  v.  Port  Deposit  Assoc,  42  Md 
233;    Dunn  v.   White,  63  Mo.   181;  Collins  v.  Jackson,  54  :Mich.   186; 
Spangler  v.  Chapman,  62  Iowa,  144;  Sims  v.  Eiland,  56  Miss.  88  and 
607 ;  Derry  v.  Peek,  14  App.  Cas.  237,  reversing  37  Ch.  Div.  541 ;  Joliffe 
V.  Baker,  11  Q.  B.  D.  255  ;  Arkwright  v.  Xewbold,  17  Ch.  Div.  301,  320; 
Piedirrave  v.  Hurd,  20  Ch.  Div.  1  ;  Pveese  Mining  Co.  v.  Smith,  L.  R. 
4  IlT  L.  64 ;  Childers  v.  Wooler,  2  El.  &  E.  287 ;  Evans  v.  Edmonds,  13 
C.  B.  777,  786.     But  see  Glaspie  v.  Keater,  5  C.  C.  A.  474  ;  Lamberton  v. 
Dunham,  30  Atl.  716  (Penn.). 

Proving  the  defendant's  knowledge  of  the  falsity  of  his  representation 


Chap.  I.  §  3.]  DECEIT.  69 

weight  of  authority,  is  not  enough,  unless  there  was  a  dis- 
tinct duty  to  know  ^  (of  which  presently). 

140.  Fraud  as  a  technical  term,  within  the  meaning  of  this 
rule,  or  fraud  in  the  narrower  sense, ^  may  he  proved  in  one 
of  three,  and  in  some  States  in  one  of  four  ways,  according 
to  the  nature  of  the  case.  It  may  be  proved  by  .„ 
showing  (1)  that  the  defendant  made  the  repre-  legal  equiva- 
sentation  with  knowledge  of  its  falsity;  or  (2)  that  i^nts  in  deceit, 
he  made  it  recklessly,  without  knowing  whether  it  was  true 
or  false;  or  in  some  States  (3)  that  he  made  it  positively, 
or  apparently  as,  of  his  own  knowledge,  when  he  only  believed 
it  to  be  true  without  having  actual  knowledge ;  "*  or  (4)  that 
he  made  it  under  circumstances  in  which  he  was  so  specially 
related  to  the  facts  that  it  was  his  duty  to  know  whether  the 
representation  was  true  or  not.* 

is  often  called  proving  the  'scienter,'  a  term  of  the  old  common-law 
pleading. 

1  Le  Lievre  v.  Gould,  1893,  1  Q.  B.  491 ;  Derry  v.  Peek,  U  App.  Cas. 
327,  and  other  cases  in  note  4,  p.  08.  But  see  Lambert  v.  Dunham,  30 
Atl.  Pi,  716  (Penn.)  ;  Glaspie  v.  Keater,  5  C.  C.  A.  474.  See  a  valuable 
article  by  Professor  Smith,  on  Liability  for  Negligent  Language,  in  the 
Harvard  Law  Review  for  November,  1900. 

■■^  The  mental  aspect  of  the  larger  idea  of  fraud  as  a  means,  i.  e.  as 
misrepresentation.     See  ante,  p.  15. 

8  Weeks  v.  Currier,  172  Mass.  53,  55 ;  Scholfield  Pulley  Co.  v.  Schol- 
field,  71  Conn.  1,  19. 

*  As  to  knowledge  of  falsity,  that  will  be  siifficient,  as  far  as  it  goes, 
for  any  representation  falling  within  the  notice  of  the  law.  As  to  the 
second  and  third  aspects  of  the  case,  see  Chatham  v.  Moffatt,  147  Mass. 
403,  C.  Allen,  J.  :  '  The  fraud  consists  in  stating  that  the  party  knows 
the  thing  to  exist,  when  he  does  not  know  it  to  exist  ;  and  if  he  does  not 
know  it  to  exist,  he  must  ordinarily  be  deemed  to  know  that  he  does 
not.  Forgetfuhiess  of  its  existence  after  a  former  knowledge,  or  a  mere 
belief  of  its  existence,  will  not  warrant  or  excuse  a  statement  of  actual 
knowledge.'  See  Scholfield  Pulley  Co.  v.  Scholfield,  71  Conn.  1,  19.  Li 
this  case  it  is  laid  down  that  a  groundless  belief  by  the  defendant  w  ill 
not  save  him. 

The  rule  itself  in  regard  to  statements  of  one's  own  knowledge  is  not 
free  from  difficulties.  Is  not  any  positive  assertion  an  assertion,  in 
natural  import,  of  knowledge  ?  Is  then  proof  of  the  falsity  alone  of  a 
positive  assertion  sufficient  proof  on  this  head  ?  So  the  cases  are  driven 
to  decide  in  upholding  the  lule. 


70  LAW   OF  TORTS.  ^Part  I. 

141.  The  fourth  of  these  aspects  of  the  case  calls  for  a  few 
remarks.  There  the  defendant  stands  in  a  peculiar  situation 
The  fourth  of  ^^^  regard  to  the  facts;  the  facts  are  specially 
these  methods,  within  his  reach;  they  are  not  facts  that  otliers 
may,  even  by  inquiry,  know  as  well.  The  result  is,  that  any 
representation  made  by  him  touching  them  is  likely  to  carry 
great  weight,  greater,  other  things  being  equal,  than  repre- 
sentations made  in  other  cases.  This  fact  may  well  be  held 
enough  to  govern  his  conduct,  and  to  require  him  to  know 
the  truth  of  the  representation ;  in  a  word,  he  may  be  held 
practically  to  have  warranted  the  representation  to  be  true, 
and,  warranting  it,  he  cannot  require  the  party  with  whom 
he  has  dealt  to  prove  that  he  knew  it  to  be  false  when  he 
made  it.^ 

142.  Accordingly  this  phase  of  fraud  may  possibly  be 
treated  as  a  case  either  of  warranty  or  of  deceit;  but  in  the 
Warranty  of  absence  of  actual  fraud,  the  better  view  is  that 
authority.  the  case  should  be  treated  as  one  of  implied  war- 
ranty. ^  It  is  believed  that  cases  of  implied  as  well  as  of  ex- 
press warranty  are  capable  of  being  treated  as  falling  under 
the  head  of  deceit  as  thus  explained.^     A  typical  illustration 

1  See  Lord  v.  Goddard,  13  How.  198;  White  v.  Madison,  26  N.  Y. 
117,  324;  .lefts  v.  York,  10  Cusb.  392,  390,  Shaw,  C.  J.;  Colleu  v. 
Wright,  8  El.  &  B.  647,  Ex.  Ch.  See  Denton  v.  Great  Northern  Railway 
Co.,  5  El.  &  B.  860,  in  regard  to  representations  by  railway  time  tables. 
Whether  the  text  would  apply  generally  to  representations  made  by  any 
with  whom  the  plaintitt"  was  not  dealing,  qua3re.  (In  such  cases  '  war- 
ranty 'would  be  a  term  of  convenience  merely.)  Compare  the  distinction 
taken  in  Einstein  v.  Marshall,  53  Ala.  1.53;  but  that  may  not  have  been 
intended  to  apply  to  cases  like  that  of  the  text. 

2  In  Jefts  V.  York,  supra,  Chief  Justice  Shaw  says  of  implied  repre- 
sentations of  agency  that  the  action  should  be  in  tort.  See  further 
Schuchhardt  v.  Allen,  1  Wall.  3.59,  368  ;  Shipper  v.  Bowen,  122  U.  S. 
575 ;  Sims  v.  American  Tel.  Co.,  5  Q.  B.  D.  188. 

2  For  the  purpose  of  defence  to  or  rescission  of  most  contracts,  by 
reason  of  misrepresentations  which  were  innocent,  it  is  not  necessary  that 
these  should  have  been  warranties.  Defence  or  rescission  is  to  be  dis- 
tinguished from  an  action  for  damages.  That,  at  all  events,  is  the  more 
general  rule.  For  the  rule  in  Alabama  see  Einstein  v.  Marshall,  58  Ala. 
15]. 


CiiAP.  I.  §  3.]  DECEIT.  71 

will  serve  to  make  the  application  of  these  remarks  clear:  If 
a  person  assume  to  act  for  another  in  respect  of  a  matter  over 
which  he  has  no  authority,  he  renders  himself  liable  for  mis- 
representation to  the  person  whom  he  may  thus  have  misled, 
though  he  may  have  honestly  believed  that  he  had  the  author- 
ity assumed.  1  The  matter  of  his  authority  was  a  fact  pecu- 
liarly within  his  own  means  of  knowledge,  and  it  was  therefore 
his  duty  to  acquaint  himself  with  the  situation.  And  this 
matter  of  representations  of  authority  has  sometimes  received 
a  pretty  wide  interpretation. ^ 

143.  Cases  falling  under  this  phase  of  the  subject  appear 
however,  apart  from  questions  of  authority  or  agency,  and 
other  cases  of  warranty, '^  to  stand  upon  narrow  ground,  and 
the  principle  of  liability  is  not  to  be  extended  to  cases  not 
clearly  within  it.  Thus  the  fact  that  a  person  allows  his 
name  to  be  used  as  director  or  trustee  of  a  corporation  or 
other  company,  in  prospectuses  containing  false  representa- 
tions, does  not  impose  upon  him  in  law  the  duty  to  know  the 
truth  of  the  statements,  and  so  subject  him  to  liability.  To 
prove  such  fact  is  not  in  any  sense  to  prove  fraud.  * 

144.  What  creates  the  duty  to  know  the    facts,   in  other 
cases  than  ordinary  warranty,  is  a  difficult  question  to  answer. 
The  following  rule,  laid  down  by  an  Irish  judge,   -v^Tiat  creates 
is  all  perhaps  that  the  nature  of  the  case  permits :  *^"^y  *°  know. 

1  Conant  v.  Alvord,  166  Mass.  311  ;  Jefts  v.  York,  ut  supra ;  White  v. 
Madison,  ut  supra;  Mahurin  v.  Ilardiug,  28  N.  H.  128;  Noyes  v.  Lover- 
iug,  55  Maiue,  403';  Colleu  v.  Wright,  8  Eh  &  B.  G47,  658 ;  Coventry's 
Case,  1891,  1  Ch.  202,  211.  The  term  'warranty'  here  is  conventional. 
See  also  Randell  v.  Trimen,  18  C.  B.  786  ;  Firbank  v.  Humphreys,  18 
Q.  B.  D.  54;  Seton  v.  Lafone,  19  Q.  B.  1).  68.  The  majority  in  Collen 
V.  Wright  would,  possibly,  have  agreed  that  an  action  for  deceit  could 
have  been  maintained.     See  Jefts  v.  York. 

2  See  May  v.  Western  Union  Tel.  Co.,  112  Mass.  90,  which  goes  to  the 
verge  of  interpretation.  When  the  facts  supposed  to  create  the  authority 
are  fully  stated,  and  no  warranty  is  created,  the  plaintiff  has  taken  his 
own  risk.     Newmann  v.  Sylvester,  42  Ind.  106. 

3  See  e.  g.  French  v.  Vining,  102  Mass.  132,  sale  of  food  for  cattle; 
Jeffery  v.  Bigelow,  13  Wend.  518. 

*  Morgan  v.  Skiddy,  62  N.  Y.  319  ;  W^estern  Bank  v.  Addie,  L.  R. 
1  H.  L.  Sc.  145. 


72  LAW  OF  TORTS.  [Part  I. 

What  a  man  must  know,  it  was  in  substance  declared,  must 
have  regard  to  his  particular  means  of  knowledge,  and  to  the 
nature  of  the  representation;  and  this  must  be  subject  to  the 
test  of  the  knowledge  which  a  man,  paying  that  attention 
which  every  one  owes  to  his  neighbor  in  making  a  represen- 
tation to  be  acted  upon,  would  have  acquired  in  the  partic- 
ular case  by  the  use  of  such  means.  ^ 

ii^lir  -h   S3. 

§  4.  Of  Plaintiff's  Ignorance  of  Falsity. 

145.  The  next  element  of  the  breach  of  duty  is  that  re- 
ignorance  and  quiring  the  plaintiff  to  show  that  he  was  ignorant 
belief.  of  the  truth  of  the  matter  concerning  which  the 
representation  was  made,  and  believed  that  it  was  true. 

146.  Both  of  these  situations  must,  in  general,  be  true  of 
the  plaintiff ;  he  must  have  been  ignorant  of  the  true  state  of 
things,  and  have  trusted  the  representation  of  them  as  made 
l)y  the  defendant.  He  must  have  been  deceived;  and  to 
render  the  defendant  liable,  the  plaintiff  must  have  been  de- 
ceived by  the  defendant.  If  the  plaintiff'  had  knowledge  of 
the  facts  in  question,  or  if  without  having  knowledge  thereof 
he  acted  upon  independent  information,  and  not  upon  a  belief 
of  the  truth  of  the  defendant's  representation,  he  is  in  the  one 
case  not  deceived  at  all,^  and  in  the  other  is  not  deceived  by 
the  person  of  whom  he  complains. 

147.  Should  a  purchaser  of   property   therefore   make  all 

„  , .     .  desired  investigation  of  his  own  in  regard  to  the 

Making  mves-  ,        ^  . 

ligation:  con-  truth  of  representations  made  by  the  vendor,  he 
cea  men  .  would  find  it  hard  to  show  that  the  latter  de- 
ceived him  by  false  representations. 

148.  More  than  this,  if  in  such  a  case  there  was  no  war- 
ranty, the  purchaser  will  not  be  allowed  to  say  that  the 
vendor  concealed  facts  of  importance  from  him;  provided 
nothing  was  done  or  said  to  prevent  the  purchaser  from 
making  as  ample  investigation  as  he  chose.     For  example: 

1  Doyle  V.  Hort,  4  L.  R.  Ir.  601,  070,  Palles,  C.  B. 

2  Hager  r.  Grossman,  31  Ind.  223;  Tuck  v.  Downiug,  76  HI.  71; 
Whiting  V.  Hill,  23  Mich.  399. 


Chap.  I.  §  4.]  DECEIT.  73 

The  defendant,  vendor  of  a  large  tract  of  land,  represents 
the  estate  to  contain  only  fifty  or  sixty  acres  of  untillable 
soil,  and  the  jjlaintiff,  the  purchaser,  before  the  sale,  exam- 
ines all  the  land  more  than  once.  The  defendant  is  not  guilty 
of  a  breach  of  duty  to  the  plaintiff,  though  it  turns  out  that 
the  estate  contains  three  hundred  acres  unfit  for  cultivation. ^ 

149.  Aside  from  such  cases,  there  are  few  cases  in  which 
the  plaintiff,  if  he  was  actually  ignorant  of  the  true  state  of 
facts  and  supposed  the  representation  to  be  true,  imputation  of 
is  treated  by  the  law  as  though  he  had  knowledge  knowledge, 
of  the  facts;  any  duty  resting  upon  him  being,  at  the  most, 
only  a  general  doty  of  diligence,  rather  than  a  duty,  like 
that  in  the  preceding  section,  towards  the  opposite  party. 
The  imputation  of  knowledge  is  then  of  much  lessened  force; 
it  is  generally  indeed  reduced  to  a  case  of  presumptive  evi- 
dence, if  it  arises  at  all. 

150.  It  has  often  been  laid  down  however  that  if  the 
means  of  knowledge  be  equally  open  to  both  parties,  the 
plaintiff,  as  a  prudent  man,  must  be  deemed  to  Means  of 
have  availed  himself  of  such  means  (or  is  not  to  knowledge, 
be  excused  if  he  has  not  done  so),  and  hence  that,  in  con- 
templation of  law,  he  has  not  been  deceived  by  the  defend- 
ant's misrepresentation;  the  result  being  that,  unless  there 
was  a  warranty,  no  action  can  be  maintained.^  There  is 
indeed  no  liability  in  any  case  in  which  the  party  complained 
of  has  made  no  misrepresentation,  has  not  been  guilty  of 
fraud  of  any  kind,  and  has  made  no  w'arranty.  '  Caveat 
emptor.'  But  for  the  broad  doctrine  before  stated,  there  is 
little  support  in  the  more  recent  specific  adjudications  upon 
the  subject. 

151.  Some  courts  however  have  come  to  draw  a  distinc- 
tion between  means  of  knowledge  at  hand  and  general  means 

1  Halls  V.  Thompson,  1  Smedes  &  ]\I.  4i3. 

2  Vernon  v.  Keys,  12  East,  632  ;  Slaughter  v.  Gerson,  13  Wall.  379, 
dictum;  Messer  v.  Smith,  59  N.  H.  41;  Leavitt  r.  Iletchcr,  CO  N.  H. 
182;  Lj^tle  v.  Bird,  3  Jones,  222;  Fields  v.  Rouse,  id.  72;  Harrington  v. 
Paterson,  124  Calif.  542  (rescission) ;  West  End  Co.  v.  Claiborne,  97 
Va.  734. 


74 


LAW   OF  TORTS. 


[Part  I. 


of  knowledge,  in  cases  of  misrepresentation;  enforcing  the 
doctrine  in  question  where  the  means  are  at  hand,  so  that  by 
reasonable  diligence  the  truth  could  be  ascertained.  For 
example :  The  plaintiff  buys  a  quantity  of  manufactured 
rubber  goods  from  the  defendant  at  the  defendant's  factory. 
The  defendant  makes  false  representations,  but  no  warranty, 
in  regard  to  the  goods,  and  the  plaintiif,  because  of  the  repre- 
sentations, does  not  examine  them  specially,  though  they  are 
at  hand  and  in  condition  to  be  examined.  It  is  held  that  the 
plaintiff  cannot  recover  damages.^ 

152.  Even  this  doctrine  can  hardly  be  considered  as  ac- 
ceptable generally,  in  the  light  of  most  of  the  recent  authori- 
ties as  distinguished  from  the  mere  dicta  of  the  books.  It 
may  be  hard  to  believe  that  a  plaintiff  did  not  avail  himself 
of  means  of  knowledge  directly  at  hand ;  but  there  is  in  prin- 
ciple, and  by  authority,  at  most  only  a  probability  of  fact  to  be 
overcome  even  in  such  a  case.  There  is,  by  the  better  rule, 
no  conclusion  of  law  either  that  the  plaintiff  availed  himself 
of  the  means,  or  that  it  was  his  duty  to  do  so ;  the  plaintiff 
may  still  show  that  he  was  misled  by  the  defendant's  repre- 
sentation,^  For  example:  A  prospectus  of  a  company  in 
process  of  formation  falsely  states  that  the  capital  stock  is  a 
certain  sum,  and  the  plaintiff  is  induced  by  this  statement  to 
subscribe  for  shares  of  stock  in  the  company.  The  plaintiff 
might  have  learned  the  true  state  of  things  by  examining  the 
records  of  the  company,  which  were  open  to  his  inspection, 

^  Salem  Rubber  Co.  v.  Adams,  23  Pick.  256.  See  Brown  v.  Leach, 
107  Mass.  304;  Cases,  33  and  note;  "Whiting  v.  Price,  172  Mass.  240, 
Hohnes,  J. :  '  But  the  requirement  as  it  has  been  worked  out  [in  Massa- 
chusetts] does  not  call  for  more  than  reasonable  diligence.'  See  also 
Honsucle  v.  Ruffin,  172  Mass.  420;  West  End  Co.  v.  Claiborne,  97  Va. 
734. 

2  Mead  v.  Bunn,  32  N.  Y.  275,  280  ;  Schwenk  v.  Naylor,  102  N.  Y. 
683;  Linington  v.  Strong,  107  111.  295;  Weber  v.  Weber,  47  Mich.  569; 
West  V.  Wright,  98  Ind.  335  ;  McClellan  n.  Scott,  24  Wis.  81,  87 ;  Griffith 
V.  Hanks,  46  Texas,  217;  Central  Ry.  Co.  v.  Kisch,  L.  R.  2  H.  L.  99, 
120;  Smith  v.  Land  &  House  Coi-p.,  28  Ch.  Div.  7;  Redgrave  v.  Hurd, 
20  Ch.  Div.  1,  13  ;  Reynell  v.  Sprye,  1  De  G.  M.  &  G.  668,  709 ;  Stanley 
V.  McGauran,  11  L.  R.  Ir.  314;  Sankey  v.  Alexander,  Ii.  R.  9  Ex.  259, 
316. 


Chap.  I.  §  4.]  DECEIT.  75 

but  did  not  make  the  examination.  He  is  not  barred  of 
redress.^  Again:  The  defendant,  vendor  of  land,  makes  to 
the  plaintiff  false  representations  concerning  his  title  to  the 
land.  An  examination  of  the  public  registry  would  disclose 
the  truth.  The  plaintiff  may  rely  upon  the  representations, 
and  need  not  go  to  the  registry. ^ 

153.  The  subject  may  be  further  illustrated  by  a  quite 
different  sort  of  case.  Every  man  is  presumed  to  know  the 
contents  of  a  written  contract  signed  by  him ;  but 

no  presumption  of  knowledge  will  stand  in  the    ,(r°r^tteiiln- 

wav  of  a  charg-e  of  misrepresentation  or  other  fraud    strument : 
•^  °  PI  •  •        o  rescission, 

in  regard  to  the  contents  of  the  writing.^    No  doubt 

it  would  be  imprudent  not  to  read  or  to  require  the  reading 
of  an  instrument  before  signing  or  accepting  it ;  indeed,  the 
courts  would  turn  a  deaf  ear  to  a  man  who  sought  to  get  rid 
of  a  contract  solely  on  the  ground  that  its  terms  were  not 
what  he  supposed  them  to  be.  But  the  case  would  be  differ- 
ent where  a  plaintiff  charged  fraud  upon  the  defendant  in 
reading  the  contract  to  him,  or  in  stating  its  terms,  or  in 
secretly  inserting  terms  not  agreed  upon.* 

154.  The  usual  course  of  proceeding  in  regard  to  cases  of 
the  kind  now  under  consideration  is  to  rescind  the  contract; 

1  Central  Ry.  v.  Kisch,  supra. 

2  Parham  v.  Randolph,  4  How.  (Miss.)  435;  Kiefer  v.  Rogers,  19 
Minn.  32;  Holland  v.  Anderson,  38  Mo.  55.  See  Rhode  v.  Alley,  27 
Texas,  443. 

Perhaps  however,  because  of  the  time  and  expense  possibly  to  be  in- 
curred, the  registry  would  not  be  considered  as  at  hand,  so  as  to  be 
immediately  available  for  verification.  A  fortiori,  of  parties  in  Massa- 
chusetts in  regard  to  the  Patent  Office  at  Washington.  David  v.  Park, 
103  Mass.  501.  So  too  of  a  piece  of  land  covered  with  snow :  Martin 
r.  Jordan,  60  Maine,  531;  Rhode  v.  Annis,  75  Maine,  17;  or  flooded: 
Jackson  v.  Armstrong,  50  Mich.  65.  Upon  this  whole  subject  of  means 
of  knowledge  see  Bigelow,  Fraud,  i.  522  et  seq. 

8  Albany  Inst,  for  Savings  v.  Burdick,  87  N.  Y.  40 ;  Robinson  v. 
Glass,  94  Ind.  211;  Hawkins  v.  Hawkins,  50  Cal.  556;  Schuylkill  v. 
Copley,  67  Penn.  St.  386  ;  Martindale  v.  Harris,  26  Ohio  St.  379  ;  Foster 
V.  Mackinnon,  L.  R.  4  C.  P.  704;  Stanley  v.  McGauran,  11  L.  R.  Ir.  314. 

*  Albany  Inst,  for  Savings  v.  Burdick,  supra;  Stanley  v.  McGauran, 
supra. 


7G  LAW  OF  TORTS.  [Part  I. 

but  such  a  course  may  have  become  impossible.^  And 
whether  it  be  possible  or  not,  it  is  a  well-established  rule  of 
law  that  one  who  has  been  induced  by  fraud  to  enter  into  a 
contract,  whether  executory  or  wholly  (as  by  sale  and  pay- 
ment) executed,  may  treat  the  contract  as  binding,  retain  its 
fruits,  and  sue  for  the  fraud  by  which  it  was  effected. ^ 
Hence  in  the  case  of  a  written  contract  knowingly  misread, 
misstated,  or  miswritten,  the  party  wronged  may  (probabl}-) 
maintain  an  action  of  deceit  for  the  damage  he  may  have 
incurred,  while  at  the  same  time  treating  the  contract  as  in 
itself  valid. 

155.  But  the  defendant  must  have  been  guilty  of  fraud,  as 
by  knowingly  misreading  or  misstating  the  instrument. 
Should  he  profess  to  state  no  more  than  the  effect  of  a  long 
writing,  he  could  not,  it  seems,  be  liable  in  damages  for  a 
mistake ;  though  equity  would  reform  the  instrument  at  the 
instance  of  the  party  injured. 

156.  The  explanation  of  all  this  is  not  far  to  seek.     It  is 
not  for  a  person  who  admits  that  he  has  been  guilty  of  endeav- 
oring to  mislead  another  by  misrepresentation,  to 

armedby mfs'-  ^ay  to  him,  when  called  to  account,  '  You  ought 
representa-  not  to  have  trusted  me;  you  were  negligent;  you 
ought  to  have  made  inquiry.'  ^  The  law  requires 
indeed  the  exercise  of  prudence  by  both  parties ;  but  that  is 
all.  If  prudence  on  the  one  side  has  been  disarmed  by  mis- 
representation on  the  other,  the  law  cannot  justly  refuse 
relief.  Besides,  the  case  of  a  plaintiff  so  situated  is  quite 
different  from  that  of  a  defendant  so  related  to  the  facts  as  to 
be  bound  to  know  the  truth.     In  this  latter  case  no  one  has 

1  See  Clarke  v.  Dickson,  El.  B.  &  E.  148. 

2  Strong  V.  Strong,  102  N.  Y.  69 ;  Gould  v.  Cayuga  Bank,  86  N.  Y. 
75;  Whitney  y.  Allaire,  4  Denio,  554;  s.  c.  1  Comst.  305;  Mallory  i;. 
Leach,  35  Vt.  158  ;  Clarke  v.  Dickson,  supra;  Regina  v.  Saddlers'  Co., 
10  II.  L.  Cas.  404,  421 ;  Western  Bank  v.  Addie,  L.  R.  1  H.  L.  Sc.  167. 

3  Albany  Inst,  for  Savings  r.  Burdick,  87  N.  Y.  40;  Smith  r.  Land 
and  House  Corporation,  28  Cli.  Div.  7;  Cases,  26;  Speed  v.  HoIIings- 
worth,  38  Bac.  R.  496  (Kans.).  But  see  Brady  v.  Finn,  162  Mass.  260; 
Hoist  V.  Stewart,  161  Mass.  516;  Whiting  v.  Price,  172  Mass.  240. 


Chap.  I.  §  4.]  DECEIT.  77 

misled  the  defendant;  in  the  case  under  consideration  the  mis- 
representation has,  upon  the  hypothesis,  misled  the  plaintiff. 

157.  The  case  is  not  varied  in  law  by  the  circumstance 
that  the  plaintiff  may  have  made  some  partial  examination  on 
his  own  behalf;  if  still  he  was  misled,  and  pre-  partial  exam- 
vented  from  making  such  examination  as  other-  ination. 
wise  he  would  have  made,  he  will  be  entitled,  so  far,  to 
recover.^  For  example:  Representations  concerning  a  hotel 
about  to  be  sold  at  auction  are  made  by  the  seller  in  printed 
particulars  of  sale.  The  buyer,  having  seen  the  statements, 
sends  his  agent  to  look  over  the  premises  to  see  whether  it 
will  be  advisable  to  buy.  The  agent  goes  according l}',  and 
having  made  examination,  makes  an  unfavorable  report ;  but 
the  purchase  is  made.  The  buyer  may  show  that  he  was 
induced  by  the  representations  of  the  seller  to  buy.^ 

158.  The  case  will  of  course  be  different  if  the  defendant's 
representation  was  not  of  a  nature  to  mislead,  as  where  it  is 
a  statement  of  mere  opinion,  or  if  it  did  not  in  ^ 

fact  mislead.     And  where  the  facts  are  open  to  tion  not  of  a 
the  plaintiff  equally  with  the  defendant,  it  will  mature  to 
no  doubt  be   more   difficult  than  in  other  cases 
for   the   plaintiff   to   show  that  he   was   prevented,   by   the 
representation   made  to  him,  from  availing   himself   of   the 
means  of  inquiry. 

159.  When  the  defendant  induces  the  plaintiff  to  abstain 
from  seeking  information,  mere  concealment  of  material  facts 
may  become  a  breach  of  duty;  and  redress  will 

not  be  refused  in  such  a  case  merely  because  a  ment  is  a  ^  ' 
sharp  business  man  might  not  have  been  deceived.  ^^^^^  °* 
Nor  is  the  rule  of  law  different  when  the  defend- 
ant suggests  examination  to  the  plaintiff,  but  in  such  a  way 
as  to  indicate  that  such  a  step  would  be  quite  unnecessary. 
For  example :  The  defendant,  in  selling  to  the  plaintiff  prop- 
erty at  a  distance,  suggests  to  the  plaintiff  that  he  go  and 

1  Cases  first  cited  in  note  3,  p.  76. 

2  Smith  V.  Land  and  House  Corporation,  supra. 


78  LAW  or  TORTS.  [PaktI 

look  at  the  property,  '  as  their  judgment  might  not  agree, 
and,  if  not  satisfied,  he  woukl  pay  the  plaintiff's  expenses, 
but  if  satisfied  the  plaintiff  should  pay  them  himself. '  This 
is  deemed  to  justify  the  plaintiff  in  acting  upon  the  defend- 
ant's representations  without  examining  the  property.^ 

160.  Even  though  a  party  sell  at  the  risk  of  the  purchaser, 
'  with  all  faults, '  as  he  may,  he  will  have  no  right  to  practise 
Sale  with  fraud ;  and  if  he  should  do  so  he  will  be  liable  as 
faults.  for  a  breach  of  his  legal  duty  to  the  purchaser. 
For  example:  The  defendant  sells  to  the  plaintiff  a  vessel, 
'  hull,  masts,  yards,  standing  and  running  rigging,  with  all 
faults,  as  they  now  lie.'  He  however  makes  a  false  state- 
ment, that  the  '  hull  is  nearly  as  good  as  when  launched, '  and 
takes  means  to  conceal  defects  which  he  knew  to  exist.  This 
is  a  breach  of  duty  to  the  plaintiff. ^  But  the  case  would  be 
different  if  the  seller,  though  aware  of  the  defects,  should 
do  nothing  to  conceal  them.^ 

161.  When  the  parties,  by  reason  of  physical  or  mental 
infirmity  on  the  one  side,  or  of  the  fact  that  the  one  party  is 
Inequality  of  i^  ^^e  occupation  or  management  of  the  other's 
parties.  business,  or  has  the  general  custody  of  his  body, 
do  not  stand  upon  an  equal  footing,  the  objection  to  a  suit 
for  false  representations,  that  the  party  to  whom  they  were 
made  was  negligent  in  not  making  inquiry  or  examination, 
has  still  less  force.  Examples  of  this  class  of  cases  may  be 
readily  found  in  the  case  of  transactions  with  aged  persons, 
or  with  cestuis  que  trust  by  trustees,  or  with  wards  by 
guardians.* 

162.  Not  even  the  subsequent  acts  of  accepting  and  paying 
for  goods  upon  delivery  will  bar  the  purchaser  of  redress, 

1  Webster  v.  Bailey,  31  Mich.  36. 

'  Schneider  v.  Heath,  3  Campb.  506.  See  Whitney  v.  Boardman,  118 
Mass.  242,  247;  George  v.  Johnson,  6  Humph.  36. 

*  Baglehole  v.  Walters,  3  Campb.  l.")4  (overruling  Mellish  v.  Motteux, 
Peake,  156);  Pickering  v.  Dowsou,  4  Taunt.  779;  By  water /■.  Richardson, 
1  Ad.  &  E.  508. 

*  See  ante,  p.  65. 


Chap.  I.  §  5.]  DECEIT.  79 

though  the  goods  were  open  to  his  inspection  at  the  time, 
if  the  fraud  was  not  then  discovered,  and  espe- 
cially if  such  acceptance  and  payment  were  pro-  Acceptance  of 
cured  by  fraudulent  artifices  on  the  part  of  the  fraud  of 
vendor.  ^     For  example :  The  defendant,  a  manu-    ^^^^' 
facturer  and  vendor   of   tobacco,  knowingly  uses   damaged 
tobacco  in  the  manufacture,  and  intentionally  uses  boxes  of 
green  lumber;  and  while  the  tobacco  is  being  made  up  he  ex- 
hibits to  the  plaintiff  from  time  to  time,  in  order  to  mislead 
him,  specimens  of  tobacco  as  of  the  kind  he  (the  defendant) 
is  supplying  the  plaintiff,  when  in  fact  the  defendant  is  sup- 
plying him  with  a  different  and  inferior  kind.     Notwithstand- 
ing  acceptance  of    the   goods    and  payment   for   them,  the 
plaintiff  is  entitled  to  damages  against  the  defendant.^ 


§  5.  Of  the  Intention  that  the  Repeesentation 
should  be  acted  upon. 

163.    In  regard  to  that  element  of  the  breach  of  duty  under 
consideration  which  requires  the  plaintiff  to  prove  that  the 
defendant  intended  his  representation  to  be  acted 
upon,  it  is  to  be  observed  that,  while  the  rule  is  tation^n^re-' 
probably  inflexible,  its  force  appears  chiefly  in  those  ^^^^  *°  ^^"^ 
cases  in  which  the  deception  was  practised  with 
reference  to  a  negotiation  with  a  third  person,  and  not  with 
the  defendant.    In'cases  of  that  kind,  an  instance  of  which  is 
found  in  false  representations  to  the  plaintiff  of  the  solvency 
of  a  third  person,^  it  is  plain  that  the  transaction  with  such 
third  person,  though  shown  to  have  been  caused  by  the  de- 
fendant's false  representation,  affords  no  evidence  of  an  in- 
tention in  the  defendant  that  the  representation   should  be 
acted  upon  by  the  plnintiff.     It  would  be  perfectly  consistent 
with  mere  evidence  that  the  plaintiff  acted  upon  the  defend- 
ant's misrepresentation  in  a  transaction  with  a  third  person, 

1  See  Clarke  v.  Dickson,  El.  B.  &  E.  148. 

2  McAroy  v.  Wright,  25  Iiid.  22.     An  act  does  not  amount  to  th« 
waiver  of  a  wrong  unless  it  be  done  with  knowledge  of  the  wrong. 

*  Pasley  v.  Freeman,  3  T.  R.  51 ;  Cases,  1. 


80  LAW   OF   TORTS.  [Part  I. 

that  the  defendant,  though  he  knew  the  falsity  of  his  repre- 
sentation, did  not  know,  and  had  no  reason  to  suppose,  that 
the  phiintiff  would  act  upon  it.  The  representation  might, 
for  all  this,  have  been  a  mere  idle  falsehood,  such  as  would 
not  justify  any  one  in  acting  upon  it. 

164.  It  follows  that  where  a  party  complains  of  false  repre- 
sentations, whereby  he  was  caused  to  suffer  damage  in  a 
transaction  with  some  third  person,  it  devolves  upon  him  to 
give  express  evidence  either  that  the  defendant  intended  that 
he  should  act  upon  the  representation,  or  the  legal  equivalent, 
that  the  plaintiff  was  justified  in  inferring  such  intention ;  ^ 
and  that  it  is  not  enough  to  prove  that  the  misrepresentation 
was  made  with  knowledge  of  its  falsity.^ 

165.  When  however  the  effect  of  the  false  representation 
was  to  bring  the  plaintiff  into  a  business  transaction  with  the 

defendant,  the  case  is  quite  different.  Proof  of 
tween  plain-  such  a  fact  shows  at  once  the  intent  of  the  de- 
fendant'^^"       fendant   to  induce  the  plaintiff  to  act  upon  the 

representation;  and  it  follows  that  no  evidence 
need  be  offered  of  an  intention  to  that  effect,  or  of  reasonable 
ground  to  suppose  an  intention.  The  principle  appears  most 
frequently  in  cases  of  sales ;  the  rule  of  law  being,  that  if  the 
plaintiff,  the  purchaser,  establish  the  fact  that  the  defendant, 
the  vendor,  knew  that  his  representation  was  false,  it  is  not 
necessary  for  the  plaintiff  to  give  further  evidence  to  show 
that  the  defendant  intended  to  induce  the  plaintiff  to  buy.^ 
For  example:  The  defendant  sells  a  horse  to  the  plaintiff 
representing  that  it  is  sound,  when  he  knows  that  it  is  not. 
Further  evidence  of  intention  is  not  necessary.* 

^  See  Freeman  v.  Cooke,  2  Ex.  654 ;  Cornish  v.  Abington,  4  H.  &  N. 
549. 

2  See  Pasley  v.  Freeman,  3  T.  R.  51 ;  Cases,  1. 

*  Collins  V.  Denison,  12  Met.  549;  Claflin  v.  Commonwealth  Ins.  Co., 
110  U.  S.  81 ;  Johnson  v.  Wallower,  15  Minn.  474;  s.  c.  18  Minn.  288  ; 
Foster  v.  Charles,  6  Bing.  396;  s.  c  7  Bing.  105;  Polhili  v.  Walter,  3  R 
&  Ad.  114. 

*  Collins  V.  Denisou,  supra. 


Chap.  I.  §  6.]  DECEIT.  81 

166.  Indeed,  it  is  not  necessary  in  any  case,  if  the  cause  of 
action   is   carefully   stated,   that   it   should   appear  that  the 
defendant  intended  to  injure  the  plaintiff.       It    inte^ttQi^, 
has  already  been  stated  that  a  person  honestly  pro-  jure  not  ii°o- 
fessing  to  have  authority  to  act  for  another  is  liable  ^^^^^^' 

as  if  for  fraud  for  the  damages  sustained,  if  he  has  not  the 
authority.^  In  such  cases  it  is  obvious  that  the  representation 
may  have  been  made  for  the  benefit  of  the  plaintiff. ^  So  too 
in  cases  in  which  the  defendant  has  made  the  misrepresenta- 
tion with  knowledge  of  its  falsity,  it  is  plain  that  he  may 
really  have  desired  and  expected  that  the  plaintiff  would 
derive  a  benefit  from  the  transaction.  The  law  requires  proof 
of  intention  (or  the  equivalent),  not  because  it  is  supposed  to 
be  necessary  to  prove  a  inotive  on  the  part  of  the  defendant, 
but  to  show  that  he  understood  the  position  of  the  plaintiff 
as  a  person  likely  to  be  misled.  It  is  in  that  way  only  that 
intention  is  an  element  in  the  breach  of  duty.  Proof  of 
malice  will  serve  the  purpose,  but  is  not  required. 

§  6.  Of  Acting  upon  the  Representation. 

167.  It  is  fundamental  that  the  defendant's  representation 

should  have  been  acted  upon  by  the  plaintiff,  and  acted  upon 

to  his  injury,  to  enable  him  to  maintain  an  action  Bgpresenta- 

for  the  alleged  breach  of  duty.^     Indeed,  fraudu-  tionmustbe 
,    °  , .  ,  ,  I'  1  acted  upon  to 

lent  conduct  or  dishonesty  ol  purpose,   however  plaintiff's 

explicit,  will  not  afford  a  cause  of  action  unless  damage. 

shown  to  be  the  very  ground  upon  which  the  plaintiff'  acted 

to   his    damage.*      The    defendant    must    have    caused   the 

damage. 

168.  So  strong  is  the  rule  upon  this  subject  that  it  is  deemed 
necessary  to  this  action  that  the  damage  as  well  as  the  acting 
upon  the  representation  must  already  have  been  suffered  before 

1  Ante,  p.  71. 

2  See  rolhill  i^.  Walter,  3  B.  &  Ad.  114. 

3  Pasley  v.  Freeman,  3  T.  R.  HI ;  Smith  i;.  Chadwick,  9  App.  Cas.  187; 
Freeman  v.  Yenner,  120  Mass.  424. 

4  Rutherford  v.  Williams,  42  Mo.  18. 

G 


82  LAW   OF  TOUTS.  [Part  I. 

the  bringing  of  the  suit,  and  that  it  is  not  sufficient  that  it 
may  occur,  f'or  example :  The  defendant  induces  the  plain- 
tiff to  indorse  a  promissory  note  before  its  maturity  by  means 
of  false  and  fraudulent  representations.  An  action  therefor 
cannot  be  maintained  before  the  plaintiff  has  been  compelled 
to  pay  the  note.-' 

169.  A  person  who  has  been  prevented  from  effecting  an 
attachment  upon  property  by  the  fraudulent  representations 
Preventing  ^^  ^^^  Owner  or  of  liis  agent  is  deemed  to  have 
attachments,  suffered  no  legal  damage  thereby,  though  subse- 
quently another  creditor  attach  the  whole  property  of  the 
debtor  and  sell  it  upon  execution  to  satisfy  his  own  debt.^ 
The  person  thus  deceived,  having  acquired  no  lien  upon  or 
right  in  the  property,  cannot  lose  any  by  reason  of  the  deceit. 
The  most  that  can  be  said  of  such  a  case,  it  has  been  observed, 
is  that  the  party  intended  to  attach  the  property,  and  that 
this  intention  has  been  frustrated ;  ^  and  it  could  not  be  cer- 
tainly known  that  that  intention  would  have  been  carried 
out.*  If  the  attachment  had  been  already  levied  and  was 
then  lost  through  the  deceit,  the  rule  would  of  course  be 
different.^ 

170.  It  must  appear  moreover  that  the  plaintiff  was  enti- 
tled to  act  upon  the  representation ;  and  this  will  depend  upon 

„„  ^    the  intention,  or  the  reasonably  presumed  inten- 

Who  may  act  ^  . 

on  the  repre-     tiou,  of  the  defendant.     The  representation  may 

sentation.  Ji^ve  been  intended  for  (1)  one  particular  indi- 
vidual only  (in  which  case  he  alone  is  entitled  to  act  upon  it), 
or  (2)  it  may  have  been  intended  for  any  one  of  a  class,  or 
(3)  for  any  one  of  the  public,  or  (4)  it  may  have  been  made 
to  one  person  to  be  communicated  by  him  to  another.  Any 
one  so  intended,  who  has  acted  upon  the  misrepresentation  to 
his  damage,  will  be  entitled  to  redress  for  any  damage  sus- 

1  Freeman  v.  Venner,  120  Mass.  424. 

2  Bradley  v.  Fuller,  118  Mass.  239.  But  see  Kelsey  v.  Murphy,  26 
Penn.  St.  78. 

3  Id.;  Lamb  v.  Stone,  11  Pick.  527. 

*  Bradley  y.  Fuller,  supra.  ^  Id. 


Chap.  I.  §  7.]  DECEIT.  83 

tained  by  acting  upon  llie  representation.^  For  example: 
The  defendants  put  forth  a  prospectus  to  the  public,  contain- 
ing false  representations,  for  the  purpose  of  selling  shares  of 
stock  in  their  company.  The  plaintiff,  as  one  of  the  public, 
may  show  that  he  acted  upon  the  representations,  and,  hav- 
ing bought  stock  accordingly,  recover  damages  for  the  loss 
sustained  thereby.^ 

)F  Kindred  Wrongs:  Quasi-Deceit :  Unfair 
f    /  7^       Competition. 

171.  We  come  now  to  certain  kindred  wrongs,  which  may 

be  called  quasi-deceit.     These  vary  somewhat  in  legal  aspect 

from  deceit  proper  as  presented  in  the  foregoing 

T        ,   ,1         1  1    •  -,1     Fraudulent 

pages,  and  yet  they  have  enough  m  common  with  ^ge  of  trade 

that  subiect  to  be  treated  as  kindred  to  it.     The  nameorbusi- 

J  N      1  •        1      •  r>  ness  Sign, 

subjects   referred   to   are  (1)  the   simulation    of 

another's  '  trade  name  '  or  business  sign,  and  (2)  disparaging 
statements  of  another's  property,  otherwise  called  Slander  of 
Title.  But  Slander  of  Title  introduces  malice,  and  is  a  dis- 
tinct tort ;  it  will  accordingly  have  a  separate  chapter. 

172.  A  trademark  proper  is  a  mark  or  device,  registered 
under  statute,  to  identify  a  man's  goods  offered  for  sale  or 
not.  The  owner  of  a  valid  statutory  trademark  has  'property 
in  the  same,  with  right  of  protection  accordingly;  his  right 
accordingly  does  not  turn  upon  the  practice  of  fraud,  or  any- 
thing in  the  nature  of  fraud,  and  hence  is  not  a  subject  for 
consideration  here.  ^  By  '  trade  name  '  is  meant  a  name,  mark, 
or  device  not  registered  according  to  statute  and  not  a  sub- 
ject of  property  in  the  plaintiff.  No  action  therefore  can  be 
based  upon  any  infringement  of  a  property  right ;  there  must 
be  simulation,  together  with  deception,  practised  by  the  de- 

1  Richardson  v.  Silvester,  L.  R.  9  Q.  B.  34 ;  Swift  v.  Wiuterbotham, 
L.  R.  8  Q.  B.  244 ;  Peek  v.  Gurney,  Law  R.  6  H.  L.  377. 

2  Andrews  v.  Mockford,  1896,  1  Q.  B.  372,  distinguishing  Peek  v. 
Gurney,  L.  R.  6  H.  L.  377.  See  also  New  York  R.  Co.  v.  Schuyler,  34 
N.  Y.  30 ;  Bruff  v.  Mali,  36  N.  Y.  200,  205. 

'  See  post,  p.  275. 


84  LAW  OF  TORTS.  [Part,  I 

fendant  on  the  public  against  the  plaintiff.^  The  wrong  is 
often  called  '  unfair  competition.'  The  trade  name  or  mark 
may  be  one  already  in  use  and  known  to  the  trade  as  the  name 
or  mark  of  a  particular  person,  or  it  may  be  new. 

173.  In  order  to  sustain  an  action  for  damages  for  alleged 
wrongful  use  of  a  trade  name,  the  plaintiff  must  show  (1)  that 

the  trade  name  used  by  the  defendant  so  resem- 
bl^pro^ed'ia  ^^^^  ^liat  of  the  plaintiff  as  to  be  likely  to  deceive 
the  case  of  a     the  ordinary  buyer,  (2)  that  the  defendant  knew  of 

the  existence  of  the  plaintiff's  mark  when  he  com- 
mitted the  alleged  wrong,  (3)  tliat  he  intended  to  palm  off  the 
goods  as  the  goods  of  the  plaintiff,  and  (4)  that  the  public  were 
deceived  thereby  to  the  plaintiff" s  hurt.^  For  example:  The 
defendant  sells  a  medicine  labelled  '  Dr.  Johnson's  ointment ; ' 
the  label  being  one  which  the  plaintiff  had  previously  used, 
and  was  still  using  when  the  defendant  began  to  make  use  of 
the  same.  The  plaintiff'  cannot  recover  without  showing  that 
the  defendant  has  used  the  label  for  the  purpose  of  indicating 
that  the  medicine  has  been  prepared  by  the  plaintiff.^  Again: 
The  plaintiff  Sykes  is  a  maker  of  powder-flasks  and  shot-belts, 
upon  which  he  has  placed  the  words  '  Sykes  Patent. '  There 
is  no  valid  patent  upon  them,  in  fact,  as  has  been  decided  by 
the  courts;  but  the  maker  has  continued  to  use  the  words 
upon  the  goods  to  designate  them  as  of  Ins  own  making. 
The   defendant,   whose    name  is  also    Sykes,  makes   similar 

1  See  Reddaway  v.  Banham,  1896,  A.  C.  199;  Ratcliffe  v.  Evans,  1892, 

2  Q.  B.  524,  528,  as  to  damage. 

2  Sykes  V.  Sykes,  3  B.  &  C.  541;  Cases,  .55  ;  Rodgers  v.  Nowill,  5  C.  B. 
109;  Morison  v.  Salmon,  2  Man.  &  G.  385;  Crawshay  v.  Thompson, 
4  Man.  cSc  G.  357,  379,  383.  See  Bigelow,  Fraud,  i.  560,  565.  In  a  pro- 
ceeding for  injunction  it  is  not  necessary,  even  in  these  cases  of  quasi- 
trademark,  to  prove  the  defendant's  knowledge  or  intent  to  deceive. 
Simple  priority  of  use  of  the  mark  is  enough.     See  Millington  v.  Fox, 

3  ]Mylne  &  C.  338 ;  Singer  Machine  Co.  v.  Wilson,  3  App.  Cas.  376 ;  Red- 
daway V.  Bentham  Hemp-spinning  Co.,  1892,  2  Q.  B.  6-39,  644,  646.  The 
subject  of  trademarks  is  being  assimilated  to  the  law  of  property,  as  trade- 
marks proper  are  taking  the  place  of  mere  trade  names;  and  actions  for 
deceit  are  becoming  infrequent. 

^  Singleton  v.  Bolton,  3  Doug.  293.  This  supposes,  of  course,  that  the 
medicine  was  not  patented. 


Chap.  I.  §  7.]  DECEIT.  85 

goods,  and  puts  upon  them  the  same  words,  with  a  stamp 
closely  resembling  that  of  the  plaintiff,  and  thus  sells  the  goods 
'  as  and  for '  the  plaintiff's  goods.  This  is  a  breach  of  duty.^ 
174.  If  the  case  be  one  of  alleged  wrongful  conduct  in  the 
use  of  a  business  sign  or  badge  likely  to  deceive,  the  proof 
required  will  be  the  same,  except  that,  instead  ^ 
of  the  '  palming  off  '  under  (8),  the  plaintiff,  to  of  business 
recover  damages,  must  show  that  the  defendant  ^^^^' 
intended  to  represent  that  the  business  which  he  was  carrying 
on  was  the  plaintiff's  business,  or  business  in  which  the  plain- 
tiff had  some  special  interest.  For  example :  The  defendant 
has  the  words  '  Revere  House  '  painted  upon  coaches  which  he 
uses  to  carry  passengers  from  the  railroad  station  to  a  hotel 
of  the  name.  By  contract  with  the  proprietor  of  the  hotel, 
the  plaintiff  has  the  exclusive  right  to  represent  that  he  has 
the  patronage  of  the  hotel.  The  defendant  commits  no 
breach  of  duty  to  the  plaintiff,  unless  he  so  makes  use  of  the 
designation  as  to  indicate  that  the  proprietor  of  the  hotel  has 
granted  to  him  what  has  been  granted  to  the  plaintiff'  alone. ^ 

^  Sykes  v.  Sykes,  supra. 

2  Marsh  v.  Billings,  7  Gush.  322;  Cases,  47.  When  an  injunction  merely 
is  asked  for  by  one  who  lias  lawfully  had  use  of  an  unregistered  name 
or  mark,  known  to  the  trade,  it  is  not  necessary,  any  more  than  it  is 
of  the  case  of  a  legal,  registered  trademark,  for  such  one  to  prove  an 
intent  on  the  part  of  the  defendant  to  palm  off  his  good.s  as  the  goods 
of  the  plaintiff  ;  enough  that  the  name  or  mark  adoj^ted  by  the  defend- 
ant, from  resembling  that  of  the  plaintiff,  will  be  likely  to  deceive  the 
ordinary  buyer.  Or  to  put  it  in  language  quoted  and  approved  by  the 
Circuit  Court  of  Appeals  of  the  United  States  :  '  When  such  a  mark,  name, 
or  phrase  has  been  so  used  by  a  person  in  connection  with  his  busi- 
ness or  articles  of  merchandise  as  to  become  identified  therewith  and 
indicate  to  the  public  that  such  articles  emanate  from  him,  the  law  will 
prohibit  others  from  using  it  in  such  a  way  as  to  lead  purchasers  to  believe 
that  the  articles  they  sell  are  his,  or  as  to  obtain  the  benefit  of  the  market 
he  has  built  up  thereunder.'  Fuller  v.  Battle  Creek  Health  Food  Co., 
Cir.  Ct.  of  Appeals,  Second  Circuit,  1900. 

The  same  name  or  mark,  so  in  use,  may  indeed  be  used  by  others,  if  it 
be  not  a  true  trademark  of  the  statute  ;  but  in  that  case  there  must  be  a 
plain  designation  that  the  name  or  mark  is  that  of  the  person  using  it, 
and  not  that  of  the  plaintiff.  Powell  v.  Birmingham  Vinegar  Co.,  189i, 
3  Ch.  449,  461;  affirmed,  1897,  A.  C.  710. 


CHAPTER   II. 

2.    Laivful  Acts  done  of  Malice. 

SLANDER    OF    TITLE. 

Statement  of  the  duty.  A  owes  to  B  the  duty  not  to  dispar- 
age B's  property,  to  B's  damage,  by  false  and  malicious  repre- 
sentations. 

Slander  of  title  was  the  name  originally  of  an  action  for  false 
and  disparaging  representations  in  regard  to  the  plaintiff's 
title  to  land ;  but  in  recent  times  the  action  and  name  have 
been  extended  to  false  and  disparaging  statements  in  regard 
to  property  of  every  kind,  and  that  too  whether  the  state- 
ments relate  to  title  or  to  quality.^ 


§  1.    Of  the  Distinction  between  Slander  of   Title 

AND    DeFAINIATION. 

175.  The  only  real  connection  the  action  has  with  actions 
for  slander  (or  libel)  is  in  the  name  the  action  bears  and  in 
What  must  be  ^^^^  structure  of  the  declaration,  which  in  f  ollow- 
proved.  ing  the  declaration  in  slander  has  followed  a  mis- 

leading analogy.  The  plaintiff  in  actions  at  law  for  slander 
of  title  has  to  prove  that  the  statements  are  false,  that  they 
were  made  with  actual  malice,  and  that  they  have  been  fol- 
lowed  by   damage. 2     None   of  these   things   is  required  in 

1  Malachy  v.  Soper,  3  Bing.  N.  C.  371  ;  Cases,  40  (title  to  personalty)  ; 
Gott  V.  Pulsifer,  122  Mass.  235  (quality  of  personalty,  '  Cardiff  Giant'). 

2  Gott  V.  Pulsifer,  122  Mass.  235;  Cardon  v.  McConnell,  120  N.  C.  461 
Hopkins  v.  Drowne,  21  R.  I.  20 ;  Malachy  v.  Soper,  3  Bing.  N.  C.  371 
Cases,  40  ;  Pater  v.  Baker,  3  C.  B.  831,  868  ;  Kendall  v.  Stone,  2  Sandf 
269  (reversed  on  another  point  5  N.  Y.  14)  ;  Stark  v.  Chitwood,  5  Kans 
141 ;  McDanield  v.  Baca,  2  Cal.  868.  See  Mellin  v.  White,  1894,  3  Ch 
276,  C.  A. 


Chap.  II.  §  2]  SLANDER  OF   TITLE.  87 

actions  for  slander,  as  will  be  seen.     But  the  requirement  of 
proof  of  malice  differentiates  the  action  also  from  deceit. 

§  2.   Of  the  Elements  of  the  Action. 

176.  Of  two  of  the  elements  of  this  action,  the  falsity  of 
the  representations  and  damage,  it  will  be  enough  to  refer 
to  what  has  been  said  of  the  same  things  in  the  chapter  on 
Deceit ;  there  is  no  difference  between  the  two  wrongs  in 
those  particulars.  In  regard  to  malice  too,  what  has  been 
said  in  another  place  ^  may  be  referred  to ;  but  a  word  should 
be  added  here. 

177.  The  malice  which  must  be  proved  in  slander  of  title 
is  '  actual '  malice,  in  the  sense  indeed  of  a  state  of  the  mind, 
but  not  necessarily  in  the  sense  of  motive.     It  is 

no  doubt  true  that  to  prove  an  evil  motive  for  the 
false  representations  will  (with  damage)  make  a  'presum-ptive 
case  of  '  actual '  malice  in  the  sense  of  the  rule,  and  that  that 
would  presumptively  overturn  the  'permission  or  privilege  to 
make  the  false  representations,  —  for  it  must  be  remembered 
that  there  can  be  no  legal  right  to  make  such  representa- 
tions.2  But  still  there  is  reason  to  believe  that  the  effect  of 
the  evidence  would  be  overtdrned  by  proof  that  the  defend- 
ant believed  what  he  said  to  be  true  and  said  it  in  good  faith, 
however  much  he  may  also  have  wished  to  harm  the  plaintiff. 
A  may  make  a  false  claim  to  property  held  by  B,  believing 
his  claim  to  be  true,  and  in  good  faith  assert  his  intention  to 
make  good  the  claim,  hoping  at  the  same  time  to  ruin  B  in 
the  contest,  in  hatred  of  him.^     At  any  rate  it  is  laid  down 

1  Ante,  pp.  16-22. 

2  That  the  case  is  one  of  permission  or  privilege  only,  see  Gott  v. 
Pulsifer,  122  Mass.  235 ;  Halsey  v.  Brotherhood,  19  Ch.  D.  386 ;  Wren  v. 
Weild,  L.  R.  4  Q.  B.  730. 

8  See  Wren  v.  Weild,  L.  R.  4  Q.  B.  730,  734,  Blackburn,  J.,  for  the 
court :  '  Where  a  person  claims  a  right  in  himself  which  he  intends  to 
enforce  against  a  purchaser,  he  is  entitled,  and  indeed  in  common  fair- 
ness bound,  to  give  the  intended  purchaser  warning  of  such  his  intention. 
.  •  .  And  consequently  we  think  no  action  can  lie  for  giving  such  pre- 
liminary warning,  unless  either  it  can  be  shown  that  the  thi-eat  was  made 
mala  fide,  only  with  the  intent  to  injure  the  vendor,  and  without  any 


88  LAW   OF  TORTS.  [Part  1. 

that  belief  and  good  faith  on  the  part  of  the  defendant  will 
be  a  defence  to  the  prima  facie  case.  For  example :  Tlie 
defendant,  to  the  damage  of  the  plaintiff,  falsely  states  to  a 
third  person,  with  whom  the  plaintiif  has  made  a  contract 
for  the  sale  of  certain  lands,  that  the  plaintiff's  title  to  the 
property  will  '  sooner  or  later  be  contested ;  '  that  when  the 
lands  were  sold  to  the  plaintiff  the  vendor  '  was  not  in  a 
state  of  soundness  or  competency.'  The  defendant  made 
this  statement  in  good  faith,  believing  it  to  be  true.  This 
is  no  breach  of  duty  to  the  plaintiff.^ 

178.  Further,  though  it  is  true  that  to  prove  an  evil  motive 
makes  a  presumptive  case  of  the  malice  required,  it  is  also 
true  that  the  plaintiff  is  not  bound  to  prove  anything  of  the 
kind.  It  is  well  settled  that  it  is  enough  for  the  plaintiff  to 
prove  that  the  defendant  made  the  false  representations  with 
knowledge  that  they  were  false  or  in  reckless  disregard  of 
the  consequences  of  making  them.  For  example :  The  plain- 
tiff in  his  declaration  alleges  that  the  defendant  made  a  claim 
falsely  and  maliciously  and  without  probable  cause,  knowing 
that  he  had  no  claim,  to  goods  of  the  plaintiff,  to  the  plain- 
tiff's damage.  The  declaration  is  good ;  knowledge  of  the 
baselessness  of  the  claim  would  be  sufficient  evidence  of 
malice.^  Again :  The  defendant  is  sued  in  slander  of  title 
for  publishing  in  a  newspaper,  of  which  he  is  projDrietor,  false 
and  disparaging  statements  concerning  a  statue  owned  by 
the  plaintiff,  called  the  Cardiff  Giant.  The  judge  instructs 
the  jury  that  the  plaintiff  must  prove  that  the  statements 
were  made  with  a  disposition  wilfully  and  purposely  to 
injure  the  value  of  the  statue,  with  wanton  disregard  of  the 

purpose  to  follow  it  up  by  an  action  against  the  purchaser,  or  that  the 
circumstances  were  such  as  to  make  the  bringing  an  action  altogether 
wrongful.'  The  qualifying  words  '  unless  .  .  .  purchaser '  plainly  imply 
that  if  there  was  a  real  purpose  to  follow  up  the  claim  by  an  action,  it 
would  not  matter  that  the  claim  was  also  made  to  injure  the  plaintiff. 

1  Pitt  V.  Donovan,  1  Maule  &  S.  639 ;  Wren  v.  Weild,  supra. 

2  Green  v.  Button,  2  Cromp.  M.  &  R.  707 ;  W^ren  v.  Weild,  L.  R. 
4  Q.  B.  730,  734. 


I 


Chap.  II.  §  2.]  SLANDER   OF  TITLE.  89 

interest  of  the  owner.  The  instruction  is  erroneous ;  the 
plaintiff  need  only  prove  that  the  statements  were  made 
with  a  reckless  disregard  of  the  plaintiff's  rights  and  of  the 
consequences  to  him.^ 

179.  It  will  accordingly  be  noticed  that  what  is  required 
in  the  name  of  malice  in  the  law  of  slander  of  title  is  satisfied 
by  proof  of  what  is  called  fraud,  in  the  narrower     t>  i  ^      * 
sense,  in  the  law  of  deceit,  to  wit,  knowledge     fraud  to 

of  falsity,  or  falsity  with  recklessness  of  conse- 
quences.2  Whether  the  other  methods  of  proving  fraud  in 
deceit  ^  would  satisfy  the  law  of  slander  of  title  in  regard  to 
malice  does  not  appear.  But  it  is  clear  that  fraud  and  malice 
are  not  synonymous  terms.  Fraud  taken  in  its  broad  sense 
signifies  something  more  than  a  state  of  mind;  as  we  have 
elsewhere  seen,  it  imports  means  employed,  while  malice  as 
an  entity,  in  whatever  sense,  is  only  a  state  of  the  mind. 

180.  But  though  the  term  '  fraud,'  as  the  word  is  commonly 
used  in  deceit,  is  here  an  interchangeable  term  with  malice, 
and  though  in  regard  to  falsity  and  damage  deceit  and 
slander  of  title  are  in  accord,  that  is  all  that  can  be  said. 
At  that  point  we  come  to  an  end  of  slander  of  title,  but  not 
of  deceit.  Several  other  elements  of  liability  would  be  re- 
quired to  make  a  case  of  deceit,  which  in  the  nature  of  things 
could  not  belong  to  the  present  wrong,  —  ignorance  of  the 
plaintiff  and  intention  that  the  plaintiff  should  act  upon  the 
misrepresentations.  Slander  of  title  has  therefore  a  place  of 
its  own  in  the  law  of  torts. 

1  Gott  V.  Pulsifer,  122  Mass.  235,  Gray,  C.  J.  :  '  Malice  in  uttering 
false  statements  may  consist  either  in  a  direct  intention  to  injure  another 
or  in  a  reckless  disregard  of  his  rights  and  of  the  consequences  that  may 
result  to  him.'  Moore  v.  Stevenson,  27  Conn.  14;  Hibbs  v.  Wilkinson, 
1  F.  &  F.  608,  610;  Paris  v.  Levy,  2  F.  &  F.  71,  74;  s.  c.  9  C.  B.  n.  s. 
342,  350 ;  Strauss  v.  Francis,  4  F.  &  F.  1107,  1114.  See  also  Scripps  u. 
Reilly,  35  Mich.  371. 

2  Ante,  p.  69.  s  i^j. 


CHAPTER  HI. 

2.  Lawful  Acts  done  of  Malice,  continued, 
MALICIOUS  PROSECUTION. 

Statement  of  the  duty.  A  owes  to  B  the  duty  not  to  insti- 
tute against  him  a  prosecution,  with  malice  and  without 
reasonable  and  probable  cause,  for  an  offence  falsely  charged 
to  have  been  committed  by  B. 

When  a  termination  of  prosecution  is  referred  to  without 
further  explanation,  such  a  termination  is  jneant  as  will,  in 
connection  with  the  other  elements  of  the  action,  permit  an 
action  for  malicious  prosecution. 

The  word  '  prosecution  '  includes  such  civil  actions  as  may 
be  the  subject  of  a  suit  for  malicious  prosecution. 

The  term  '  probable  cause  '  is  used  for  brevity,  in  this 
chapter,  for  '  reasonable  and  probable  cause.'  ^ 

§  1.   What  must  be  Peoved. 

181.  In  order  to  maintain  an  action  for  a  malicious  prose- 
cution, three  things  are  necessary,  and  sometimes  four,  to 
wit,  (1)  the  prosecution  complained  of  must  have  terminated 
before  the  action  for  redress  on  account  of  it  is  begun ;  (2) 
it  must  have  been  instituted  without  probable  cause ;  (3)  it 
must  have  been  instituted  maliciously ; ^  (4)  actual  damage 
must  be  proved  in  cases  in  which  the  charge  in  itself  would 
not   be   actionable,    assuming   that   an    action  for   malicious 

^  There  may  be  some  slight  difference  in  meaning  in  special  cases,  be- 
tween '  reasonable  '  and  '  probable  '  cause.  See  the  language  of  Tindal, 
C.  J.,  in  Broad  v.  Ham,  5  Bing.  N.  C.  722,  725,  quoted  in  Lister  v.  Perry- 
man,  L.  R.  4  H.  L.  521,  530,  540.  Ordinarily  however  the  words  are 
synonymous. 

2  Ellis  V.  Simonds,  168  Mass.  316,  325  ;  Vanderbilt  v.  Mathis,  5  Duer, 
304 ;  Cases,  58 ;  Hagelund  v.  Murphy,  54  Neb.  545. 


Chap.  III.  §  2.]  MALICIOUS  PROSECUTION.  91 

prosecution  is  maintainable  in  such  a  case.     And  it  devolves 
upon  the  plaintiff  to  prove  all  these  facts. 

182.  Actions  for  malicious  prosecution  are  brought,  for  the 
greater  part,  only  for  wrongful  criminal  prosecutions.  For 
civil  suits  instituted  of  malice  and  without  prob-  wrongful 
able  cause  the  tendency  of  policy  appears  to  be  *'^'^^^  ^'^^'^• 
against  giving  redress  universally.^  It  is  given  however  in 
cases  of  actions  involving  charges  of  '  scandal  to  reputation 
or  the  possible  loss  of  liberty,' ^  such  as  'proceedings  in  bank- 
ruptcy against  a  trader,  or  the  analogous  process  of  a  petition 
to  wind  up  a  company,'  ^  and  cases  in  which  property  lias 
been  attached  maliciously  and  without  probable  cause,  but 
professedly  under  attachment  laws,  or  has  been  thus  taken  in 
replevin,*  and  the  like.  But  where  there  has  been  a  wrong- 
ful arrest,  there  is  ground  for  a  suit  for  false  imprisonment, 
though  there  may  be  none  for  malicious  prosecution.^ 

§  2.   Of  the  Termination  of  the  Prosecution. 

183.  The  action  for  a  malicious  prosecution  is  given  for 
the  preferring  in   court  of   a  false  charge,   maliciously  and 
without  proper  grounds.     And,  as  it  cannot  be  Reason  for 
known    by   satisfactory    evidence    whether    the  muiatioifo*/^' 
charge  is  true  or  false   before  the  verdict  and  prosecution. 

1  The  rule  in  England  is  very  clear.  '  In  the  present  day,  and  accord- 
ing to  our  present  law,  the  bringing  of  an  ordinary  action,  however 
maliciously,  and  however  great  the  want  of  reasonable  and  probable 
cause,  will  not  support  a  subsequent  action  for  malicious  prosecution.' 
Quartz  Hill  Mining  Co.  v.  Eyre,  11  Q.  B.  Div.  674,  690,  Bowen,  L.  J. 
But  there  are  some  exceptions,  as  in  cases  involving  false  imputations 
touching  business  reputation.  See  id.  p.  691.  Actions  for  malicious 
civil  suits  are  not  limited  in  this  country  by  any  definite  restriction.  See 
Closson  V.  Staples,  42  Vt.  209  ;  Cincinnati  Tribune  Co.  v.  Bruck,  61  Ohio 
St.  489 ;  Coal  Co.  ;;.  Upson,  40  Ohio  St.  17 ;  Pope  v.  Pollock,  46  Ohio  St. 
367  ;  Cardival  v.  Smith,  109  Mass.  158  ;  Bicknell  v.  Dorion,  16  Pick.  478, 
488-490. 

2  11  Q.  B.  Div.  691,  Bowen,  L.  J.  ;  Pollock,  Torts,  279,  2d  ed. 
8  Pollock,  279;  11  Q.  B.  Div.  691. 

*  Fortman  v.  Rottier,  8  Ohio  St.  548.     See  O'Brien  v.  Barry,  106  Mass. 
300 ;  Johnson  v.  King,  64  Texas,  226 
6  Chapter  ix. 


92 


LAW  OF   TORTS. 


[Part  I. 


judgment  of  the  court  trying  the  cause,  it  is  deemed  neces- 
sary for  the  defendant  to  await  the  termination  of  the  pro- 
ceeding before  instituting  an  action  for  malicious  prosecution. 
Or,  as  the  reason  has  more  commonly  been  stated,  if  the  suit 
for  the  alleged  malicious  prosecution  should  be  permitted 
before  the  prosecution  itself  is  terminated,  inconsistent  judg- 
ments might  be  rendered,  —  a  judgment  in  favor  of  the 
jDlaintiff  in  the  action  for  the  prosecution,  and  a  judgment 
against  him  in  that  prosecution ;  ^  and  it  is  often  said  that 
judgment  against  the  party  prosecuted,  would  show,  and  that 
conclusively,  that  there  was  probable  cause  for  the  prosecu- 
tion.^ 

184.  It  will  be  seen  in  the  next  section  (relating  to  probable 
cause)  that  this  is  an  unsound  view  of  the  effect  of  the  judg- 
ment.^ But  since  conviction  would  show  that  the  charge 
was  not  false,  the  prosecution  could  not  have  been  wrongful ; 
the  person  prosecuted  has  now  to  prove  that  he  was  not 
guilty,*  —  conviction  shows  that  he  was  guilty. 

185.  Conviction  is  fatal  even  though  the  prosecution  take 
place  in  a  proceeding  from  which  there  is  no  appeal.  Convic- 
tion in  such  a  case  is  equally  fatal  with  a  conviction  in  a  tribu- 
nal from  the  judgment  of  which  the  defendant  has  a  right  of 
appeal ;  since  to  allow  the  action  for  malicious  prosecution 
would  be  (so  it  is  deemed)  virtually  to  grant  an  appeal. 
For  example :  The  defendant  procures  the  plaintiff  to  be  ar- 
rested (falsely,  maliciously,  and  without  probable  cause,  as 
the  latter  alleges)  and  tried  before  a  justice  of  the  peace  on 
a  criminal  complaint  of  assault  and  battery.     The  plaintiff 

1  Fisher  v.  Bristow,  1  Doug.  215. 

2  Parker  v.  Farley,  10  Cush.  279,  282 ;  Dennehey  v.  Woodsum,  100 
Mass.  195,  197;  Morrow  v.  Wheeler  &  W.  IManuf.  Co.,  165  Mass.  349; 
Castrique  v.  Behrens,  3  El.  &  E.  709.  See  Bes^be  v.  Matthews,  L.  R, 
2  C.  P.  684 ;  1  Smith's  Leading  Cases,  258,  6th  ed. 

«  It  is  held  in  England,  on  sound  principle,  that  an  action  for  mali- 
cious prosecution  against  the  present  plaintiff,  by  proceedings  against 
him  in  bankruptcy,  may  be  maintained  notwithstanding  an  adjudication 
against  him,  if  this  has  been  set  aside.  Metropolitan  Bank  v.  Pooley,  10 
App.  Cas.  210.     See  also  Philpot  v.  Lucas,  101  Iowa,  478,  480,  481. 

*  Precedents  in  Chitty,  Pleading,     . 


Chap.  III.  §  2.]  MALICIOUS   PROSECUTION.  93 

(then  defendant)  is  convicted,  and  no  appeal  is  allowed  by 
law.  The  defendant  is  not  liable  to  an  action  for  malicious 
prosecution.! 

186.  It   is  often  said   that  the  plaintiff   must  have  been 
acquitted  of  the  charge  preferred,  to  enable  him  to  sue  for 
malicious  prosecution.     But    this  is   not  always  Acquittal  not 
true ;  it  is  not  true  of  civil  suits,^  and  of  course  necessary  in 
it  is  not  true  of  criminal  proceedings  in  which  '^^^^^^^  '^^^"• 
there  is  no  power  of  conviction  or  acquittal. 

187.  It  is  not  necessary  to  the  termination  of  a  civil  suit, 
such  as  will  permit  an  action  for  malicious  prosecution,  that 
the  suit  should  have  gone  to  actual  judgment,  or  even  to  a 
verdict  by  the  jury.  A  civil  suit  is  entirely  within  the  con- 
trol of  the  plaintiff,  and  he  may  withdraw  and  terminate  it 
at  any  stage ;  and,  should  he  take  such  a  step,  the  suit  is 
terminated.  For  example :  The  defendant  (in  the  suit  for 
malicious  prosecution)  writes  in  the  docket  book,  opposite  the 
entry  of  the  case  against  the  plaintiff,  '  Suit  withdrawn,' 
This  is  a  sufficient  termination  of  the  cause  for  the  purposes 
of  the  now  plaintiff.^ 

188.  It  is  not  necessary  indeed  that  the  party  should  make 
a  formal  entry  of  the  withdrawal  or  dismissal  of  the  suit,  in 
order  (without  a  judgment  or  verdict)  to  terminate  it  suffi- 
ciently for  the  purposes  of  an  action  by  the  opposite  party. 
Any  act,  or  omission  to  act,  which  is  tantamount  to  a  dis- 
continuance of   the  proceeding   has    the  same   effect.^     For 

1  Besebe  r.  Matthews,  L.  R.  2  C.  P.  684. 

2  Driggs  V.  Burton,  44  Vt.  124,  14.'5. 

The  term  acquittal  is  often  loosely  used,  as  in  Sayles  v.  Briggs,  4  Met. 
421,  and  in  Vanderbilt  v.  INIathis,  5  Duer,  304,  where  there  has  been 
no  more  than  a  termination  of  preliminary  proceedings  with  a  discharge 
of  the  prisoner.  In  such  cases  no  acquittal  is  necessary,  as  will  be  seen 
later ;  none  is  possible  in  such  proceedings.  When  an  acquittal  in  a 
prosecution  for  crime  is  really  necessary,  there  must  be  such  a  termina- 
tion of  the  prosecution,  in  favor  of  the  accused,  as  will  enable  him  to 
plead  the  judgment  in  bar  of  another  prosecution,  as  for  instance  by  the 
plea  of  once  in  jeopardy. 

3  Aruudell  v.  White,  14  East,  216. 

*  Cardival  v.  Smith,  109  Mass.  158 ;  Strehlow  v.  Pettit,  96  Wis.  22. 


94  LAW  OF  TOKTS.  [Part  1. 

example :  The  defendant,  having  procured  the  arrest  of  the 
plaintiff  in  a  civil  cause,  fails  to  enter  and  prosecute  liis  suit. 
This  is  a  termination  of  the  proceeding.^ 

189.  If  however  the  (civil)  prosecution  went  to  judgment, 
the  judgment  must  have  been  rendered  in  favor  of  the  de- 
fendant therein,  in  order  to  enable  him  to  sue  for  malicious 
prosecution.  Judgment  against  the  defendant  would  con- 
clusively establish  the  plaintiff's  right  of  action ;  ^  it  could 
not  therefore  be  treated  as  a  false  prosecution^  though  it 
might  have  been  attended  with  malice,  —  unless  indeed  it 
was  concocted  in  fraud.* 

190.  In  a  criminal  trial  the  situation  is  indeed  different. 

Such  a  proceeding  is  instituted  by  the  public,  and,  when  by 

„  .   .    ,  indictment,  is  under  the  control  of  the  attorney- 

Cnminal  '  .  ^  . 

trials  distill-  general  or  other  prosecuting  officer ;  it  is  never 
gmshed.  under  the  control  of  the  prosecutor.     He  has  no 

authority  over  it;  and,  this  being  the  case,  he  cannot,  in 
principle,  be  bound  by  the  action  of  the  prosecuting  officer. 
Should  such  officer  therefore  enter  a  dismissal  of  the  suit 
before  the  defendant,  having  been  duly  indicted,  has  been  put 
in  jeopardy^  this  act,  it  seems,  gives  no  right  to  the  prisoner 
against  the  prosecutor.  The  course  of  proceeding  was  not 
arrested  by  the  prosecutor,  and  he  has  a  right  to  insist  that 
the  law  shall  take  its  regular  course,  and  place  the  prisoner 
in  jeopardy,  before  he  shall  have  the  power  to  seek  redress. 
For  example  :  The  defendant  procures  the  plaintiff  to  be 
indicted  for  arson.  The  prosecuting  officer,  failing  to  obtain 
evidence,  enters  a  '  nolle  prosequi '  before  the  jury  is  sworn. 
The  prosecution  is  not  terminated  in  favor  of  the  prisoner.^ 

1  Cardival  v.  Smith,  supra. 

2  O'Brien  v.  Barry,  106  Mass.  300,  304. 

^  Id.  Or,  as  the  case  is  sometimes  put,  judgment  for  the  plaintiff 
would  show  that  he  had  probable  cause  for  the  prosecution,  a  point  to  be 
considered  hereafter. 

4  Burt  r.  Place,  4  Wend.  591 ;  Payson  v.  Caswell,  22  ]\Iaine,  212. 

5  Bacon  v.  Towne,  4  Cush.  217.  It  has  sometimes  been  said  that  the 
accused  cannot  sue  in  any  case  in  which  a  '  nolle  prosequi '  has  been  en- 


Chap.  III.  §  2.]  MALICIOUS   PROSECUTION.  95 

191.  If  however  the  prosecution  was  arrested  Lj  the 
grand  jury's  finding  no  indictment  upon  the  evidence,  and 
the  consequent  discharge  of  the  prisoner,  tliis  is  no  indictment 
an  end  of  the  prosecution,  such  as  will  enable  i°^^^- 
him  (other  elements  present)  to  bring  the  action  under  con- 
sideration.^ And  the  same  is  true  when  the  prosecution  is 
begun  by  complaint  before  a  magistrate  who  has  jurisdic- 
tion only  to  bind  over  or  discharge  the  prisoner.  The  magis- 
trate's entry  that  the  prisoner  is  discharged  entitles  him,  so 
far,  to  bring  an  action.^  And  this  is  true,  though  the  prose- 
cutor withdraw  his  prosecution.^  In  preliminary  proceedings 
such  as  the  foregoing  there  can  be  no  conviction  or  acquit- 
tal. For  example ;  The  defendant  prefers  against  the  plain- 
tiff a  charge  of  forgery  before  a  justice  of  the  peace,  who  has 
authority  only  to  bind  over  or  discharge  the  prisoner.  The 
justice's  minutes  contain  the  following  entry :  '  After  full 
hearing  in  the  case,  the  complainant  withdrew  his  prosecu- 
tion, and  it  was  thereupon  ordered'  that  the  plaintiff  be 
discharged.  An  action  for  malicious  prosecution  is  now 
proper.* 

tered,  —  that  he  must  show  a  verdict.  Parker  v.  Farley,  10  Gush.  279; 
Brown  v.  Lakenian,  12  Cush.  482;  Cardival  i'.  Smith,  109  Mass.  158; 
Ward  V.  Reasor,  36  S.  E.  Rep.  470  ^(Va.).  But  that  doctrine  has  been 
overturned  in  the  State  in  wliicli  it  was  laid  down.  Graves  c.  Dawson, 
130  Mass.  78;  s.c.  133  Mass.  419;  Douglas  o.  Allen,  56  Ohio  St.  156, 
158;  Murphy  v.  Moore,  11  Atl.  Rep.  665.  See  also  Driggs  v.  Burton,  44 
Vt.  124,  143.  Further  as  to  '  uolle  prosequi '  see  Commonwealth  v.  Tuck, 
20  Pick.  356,  365;  Langford  v.  Boston  R.  Co.,  144  Mass.  431;  Welch  v. 
Cheek,  125  N.  C.  353;  s.  c.  115  X.  C.  310.  If  an  order  of  nolle  pro- 
sequi is  entered  after  the  trial  jury  is  impanelled,  in  violation  of  the 
prisoner's  right,  as  where  he  has  demanded  a  verdict,  he  is  acquitted  in 
law ;  and  such  an  acquittal  is  as  good  for  the  purpose  of  the  suit  for 
malicious  prosecution  as  a  verdict  of  acquittal.  Further,  the  order  of 
nolle  prosequi  may  be  a  merely  formal  thing,  and  so  immaterial  to 
the  question  of  the  suit  by  the  prisoner,  as  in  Graves  v.  Dawson, 
supra. 

1  See  Byne  v.  Moore,  5  Taunt.  187;  s.  c.  L.  C.  Torts,  181. 

2  Rider  V.  Kite,  61  N.  J.  8.  But  see  Ward  v.  Reasor,  36  S.  E.  Rep. 
470  (Va.),  which  clearly  is  wrong.  Acquittal  is  required  only  where 
there  can  be  an  acquittal. 

3  Sayles  v.  Briggs,  4  Met.  421.  *  Id. 


96  LAW  OF  TORTS.  PPart  I. 

192.  In  none  of  the  foregoing  classes  of  cases  has  there 
been  an  acquittal  of  the  party  prosecuted,  or  anything  tanta- 
™..  ..      mount  in  law  to  an  acquittal.     To  be  acquitted 

WHaD  COHSLI"  ^ 

tutes  acquit-  in  a  prosecution  lor  crime  (the  only  case  calling 
**!■  for  remark),  the  accused  must   have    been   put 

in  jeopardy;  but  a  state  of  jeopardy  is  not  reached  until 
the  swearing  of  the  petit  jury.  Hence  if  acquittal  were 
necessary,  an  action  for  malicious  prosecution  could  not  be 
instituted  upon  the  failure  of  the  grand  jury  to  find  an 
indictment,  or  upon  the  discharge  of  a  magistrate  who  has 
no  power  to  convict.  In  neither  case  has  the  prisoner  been 
in  jeopardy.  The  fact  appears  to  be  that,  notwithstanding 
the  language  of  some  of  the  judges,  a  termination  of  the 
proceedings  with  an  acquittal,  actual  or  virtual,  is  necessary 
only  in  case  of  an  indictment  or  information  against  the 
prisoner.  In  other  cases,  it  is  enough  that  the  prosecution 
has  been  dismissed.^ 

193.  By  way  of   summary,  the  various  rules  of   law  may 

be  thus  stated :    A  civil  suit  is  sufficiently  terminated  (1) 

when  the    plaintiff   has  withdrawn,   or   otherwise 
Summing  up       .  .         ^         .  . 

of  termina-  discontinued,  his  action  ;  or  (2)  when  judgment 
*^°^-  has   been   rendered   in   favor   of    the    defendant. 

1  The  rule  requiring  an  acquittal  of  the  party  prosecuted  runs  back  to 
an  early  Englisli  statute  entitled  '  Malicious  Appeals.'  Westm.  2,  c.  12 
(13  Edw.  1).  By  this  statute  it  was  ordained  that  when  any  person 
maliciously  '  appealed  [that  is,  accused  and  prosecuted]  of  felony  sur- 
mised upon  him,  doth  acquit  himself  in  the  King's  Court  in  due  manner,' 
&c.,  the  appellor  shall  be  imprisoned  and  be  liable  in  damages  to  the  in- 
jured party.  A  few  years  later  statutes  were  passed  against  conspiracies 
to  indict  persons  maliciously.  L.  C.  Torts,  190.  Between  these  statutes 
and  the  statute  first  mentioned,  aiid  taking  its  shape  from  them,  the 
action  for  malicious  prosecution  arose.  The  various  statutes  applied  to 
cases  of  prosecutions  for  felony  alone ;  in  such  cases  it  was  provided  that 
acquittal  was  necessary.  All  other  cases  stand,  so  far  as  those  statutes 
affect  the  law,  as  at  common  law.  Prosecutions  for  misdemeanors, 
prosecutions  before  inferior  courts,  and  civil  prosecutions  have  been  left 
to  the  wisdom  of  the  judges  (except  those  falling  within  the  Statute  of 
Malicious  Distresses  in  Courts  Baron,  which  required  proof  only  of  malice 
and  a  false  complaint.     L.  C.  Torts,  192). 


Chap.  III.  §  3.]  MALICIOUS   PROSECUTION.  97 

A  criminal  suit  is  sufficiently  terminated  (1)  when  the  prose- 
cution, if  brought  before  a  magistrate,  has  been  dismissed,  or 
(2)  when,  if  preferred  before  the  grand  jury,  that  body  has 
found  no  indictment;  or  (3)  when,  an  indictment  having 
been  found,  and  the  prisoner  having  been  put  in  jeopardy, 
the  prisoner  has  been  acquitted  in  fact  or  in  law.  It  seems 
however  that  the  termination  must  not  have  been  bi-ouffht 
about  by  the  defendant  in  the  former  prosecution,  as  by 
a  compromise  or  by  his  request.^  Perhaps  the  prisoner 
should  also  have  been  discharged ;  but  he  is  entitled  to 
a  dischai'ge  in  all  the  cases  mentioned. 

§  3.     Or  THE  Want  of  Probable  Cause. 

194.    Supposing  the  plaintiff  to  have  begun  his  action  after 

the  termination   of   the  prosecution,  it   then  devolves  upon 

him  further  to  establish  the  defendant's  breach  ^n,  ♦      v. 

V/nat  proba- 

of  duty  by  showing  that  he  instituted  the  prose-  bie  cause 
cution   without   probable  cause.^     And   this   ap-  °^®^^^- 
pears  to  mean  that  he   ought  to  show  that  no  such   state 
of   facts  or  circumstances  was  known  to  him  as  would  in- 
duce one  of  ordinary  intelligence  and  caution  to  believe  the 

1  Welch  V.  Cheek,  125  N.  C.  35S ;  s.  c.  115  N.  C.  310;  Langfoid  v. 
Boston  R.  Co  ,  144  Mass.  431 ;  cases  of  nolle  prosequi.  See  also  Marcus 
V.  Bernstein,  117  N.  C.  31. 

2  Turner  v.  Amhler,  10  Q.  B.  252.  Under  the  early  law,  as  declared 
by  the  Statute  of  Malicious  Appeals  (ante,  p.  96,  note)  and  applied  for 
centuries,  this  apparently  was  not  true.  Acquittal  and  malice  made  a 
presumptive  case.  Probable  cause  was  a  defence,  but  so  far  as  it  was 
distinguished  from  malice  the  burden  of  proof  in  regard  to  it  seems  to 
have  been  upon  the  defendant.  See  Savill  v.  Roberts,  Ld.  Raym.  374.  It 
appears  to  have  been  considered  as  overturning  the  plaintiff's  evidence 
of  malice.  After  Savill  v.  Roberts  (1699)  the  defendant  had  no  need  to 
prove  probable  cause  if  an  indictment  not  involving  scandal  or  loss  of  life 
or  liberty  had  been  found  against  the  plaintiff;  the  plaintiff  being  'con- 
strained to  show  express  malice  and  iniquity  in  the  prosecution.'  Savill 
V.  Roberts,  Lord  Holt.  This  would  be  done  evidently  by  proving  want 
of  probable  cause.  The  action  for  malicious  prosecution  was  '  not  to  be 
favored  but  managed  with  great  caution,'  in  cases  not  involving  scandal 
or  loss  of  life  or  liberty.  Id.  This  doctrine  led  the  way  for  the  modern 
rule  requiring  the  plaintiff  to  prove  want  of  probable  cause  in  all  cases. 

7 


98  LAW  OF  TORTS.  [Part  I. 

charge  preferred  to  be  true.^  Or,  conversely,  probable  cause 
for  preferring  a  charge  of  crime  is  shown  by  facts,  actual  or 
believed  by  him  to  be  actual,  which  would  create  a  reason- 
able suspicion  in  the  mind  of  a  reasonable  man.^ 

195.  To  act  therefore  on  very  slight  circumstances  of  sus- 
picion, such  as  a  man  of  caution  would  deem  of  little  weight, 
is  to  act  without  probable  cause.  For  example :  The  de- 
fendant procures  the  arrest  of  the  plaintiff  upon  a  charge  of 
being  implicated  in  the  commission  of  a  robbery,  which  in 
fact  has  been  committed  by  a  third  person  alone,  who 
absconds.  The  plaintiff,  who  has  been  a  fellow-workman 
with  the  criminal,  has  been  heard  to  say  that  he  (the  plain- 
tiff) had  been  told,  a  few  hours  before  the  robber}^,  that  the 
robber  had  absconded,  and  that  he  had  told  the  plaintiff 
that  he  intended  to  go  to  Australia.  The  robber  has  also 
been  seen,  early  in  the  morning  after  the  robbery,  coming 
from  a  public  entry  leading  to  the  back  door  of  the  plain- 
tiff's house.  The  defendant  has  no  probable  cause  for  the 
arrest.^ 

196.  Probable  cause  however  does  not  depend  upon  the 
actual  state  of  the  case,  in  point  of  fact,  but  upon  honest  and 
Acting  in  bad  reasonable  belief.*  Hence,  though  the  prosecutor 
faith.  -^Q  [^^  r^  situation  to  show  that  he  had  probable 
cause,  so  far  as  regards  the  strength  of  his  information,  still 
if  he  did  not  believe  the  facts  and  rely  upon  them  in  pro- 
curing the  arrest,  he  -has  committed  a  breach  of  duty  towards 
the  person  arrested.  For  example  :  The  defendant  goes  be- 
fore a  magistrate  and  prefers  against  the  plaintiff  the  charge 
of  larceny,  for  which  there  was  reasonable  ground  in  the 
facts  within  the  defendant's  cognizance.  The  defendant 
however  does   not  believe  the  plaintiff   guilty,  but   prefers 

1  Driggs  V.  Burton,  44  Vt.  124 ;  Boyd  v.  Cross,  35  Md.  194. 

'^  Broughton  v.  Jackson,  18  Q.  B.  378 ;  Panton  v.  Williams,  2  Q.  B. 
169,  Ex.  Ch. ;  Ellis  v.  Simonds,  168  Mass.  316;  Boyd  v.  Cross,  supra; 
Ramsey  v.  Arrott,  64  Texas,  320;  Davis  v.  Pacific  Telephone  Co.,  127 
Calif.  312  ;  Torsch  v.  Dell,  88  Md.  459. 

2  Busst  V.  Gibbons,  30  Law  J.  Ex.  75.  Comp.  Lister  v.  Perryman, 
L.  R.  4  H.  L.  521,  as  to  hearsay. 

i  Goldstein  v.  Foulkes,  19  R.  I.  291 ;  King  i-.  Colvin,  11  R.  L  582. 


Chap.  III.  §  3.]  MALICIOUS   PROSECUTION.  99 

the  charge  in  order  to  coerce  the  plaintiff  to  pay  a  debt  which 
he  owes  to  the  defendant.  The  defendant  has  acted  without 
probable  cause.^ 

197.  The  question  of  probable  cause  is  to  be  decided  by 
the  circumstances  existing  or  supposed  to  exist  at  the  time 
of  the  arrest,  and  not  by  the  turn  of  subsequent 

events  ;  2  such  at  all  events  is  the  general  rule,  able  cause: 
If  the  defendant  had  at  that  time  such  grounds  subsequent 

6V6IltS 

for  supposing  the  plaintiff  guilty  of  the  crime 
charged  as  would  satisfy  a  cautious  man,  he  violates  no  duty 
to  the  plaintiff  in  procuring  his  arrest,  though  such  grounds 
be  immediately  and  satisfactorily  explained  away,  or  the 
truth  discovered  by  the  prosecutor  himself.  For  example  : 
The  defendant  procures  the  plaintiff  to  be  arrested  for  tlie 
larceny  of  certain  ribl^ons,  on  reasonable  grounds  of  suspicion. 
He  afterwards  finds  the  ribbons  in  his  own  possession.  He 
is  not  liable.^ 

198.  On  the  other  hand,  in  accordance  witli  the  same  prin- 
ciple, if  the  prosecutor  was  not  possessed  of  facts  justifying 
a  belief  that  the  accused  was  guilty  of  the  charge,  it  matters 
not  that  subsequent  events  (short  of  a  judgment  of  convic- 
tion, as  to  which  presently)  show  that  there  existed,  in  fact, 
though  not  to  the  prosecutors  knowledge,  circumstances 
sufficient  to  have  justified  an  arrest  by  any  one  cognizant  of 
them.  He  has  violated  his  duty  in  procuring  the  arrest. 
For  example :  The  defendant  to  an  action  for  malicious 
prosecution  shows  facts  sufficient  to  constitute  probable 
cause,  but   does  not   show  that   he  was    cognizant   of  such 

1  Broad  v.  Ham,  5  Bing.  N.  C.  722.  Had  the  defendant  believed  the 
charge,  would  it  have  been  material  that  he  procured  the  arrest  mainly 
for  the  purpose  of  getting  his  pay? 

-  Thompson  v.  Beacon  Rubber  Co.,  .56  Conn.  493;  Swain  v.  Stafford, 
4  Ired.  392  and  398;  Delegal  v.  Highley,  3  Bing.  N.  C.  950.  But  see 
Adams  v.  Lisber,  3  Blackf.  2-il;  Hickman  v.  Griffin,  6  Mo,  37.  See 
L.  C.  Torts,  198-200. 

8  Swain  f.  Stafford,  4  Ired.  392  and  398.  /fv  ■    .     ,»'■--•■»    •     .' 

■  .-■•.ji 


100  LAW  OF  TORTS.  [Part  I. 

facts  when  he  procured  the  plaintiff's  arrest.     The  defence 
is  not  good. ^  ■•    .',        / 

199.    It   has   however  been    declared  that,  while  acquittal 
is  no  evidence  of  probable  cause,  conviction  is  conclusive  of 
.    .  its   existence  ;  ^    and  this  though   the  verdict  is 

afterward  set  aside  and,  upon  a  new  trial,  an 
acquittal  follows.^  But  this,  it  will  be  seen,  is  inconsistent 
with  the  rule  that  the  question  of  probable  cause  is  to  be 
determined  by  the  state  of  facts  within  the  prosecutor's 
knowledge  (supposing  him  to  have  acted  bona  fide  upon 
such  facts)  at  the  time  of  the  arrest.  Conviction  does  not, 
in  point  of  fact,  prove  that  the  prosecutor  at  the  time  had 
reasonable  grounds  to  suspect  the  guilt  of  the  prisoner ;  such 
grounds,  that  is,  as  would  have  induced  a  cautious  man  to 
arrest  the  suspected  person.*  It  would,  it  seems,  be  more 
accurate  to  say  that  the  old  Statute  of  Malicious  Appeals, 
which  in  reality  lies  at  the  foundation  of  the  law  concerning 
criminal  prosecutions,  by  plain  implication  exempted  the 
prosecutor  (of  felony)  from  liability  in  case  of  the  conviction 
of  the  prisoner,^ 

1  Delegal  v.  Highley,  3  Bing.  N.  C.  950. 

2  Whitney  v.  Peckham,  15  Mass.  243  (by  a  trial  magistrate)  ;  Parker 
V.  Farley,  10  Cush.  279,  282;  Morrow  v.  Wheeler  &  Wilson  Co.,  165 
Mass.  3i9;  Dennehey  v.  Woodsum,  100  Mass.  195,  197;  Holliday  v. 
Holliday,  123  Calif.  26,  32;  Crescent  Live  Stock  Co.  v.  Butchers'  Union, 
120  U.  S.  141 ;  Hartshorn  v.  Smith,  104  Ga.  235 ;  Short  v.  Spragins,  id. 
628  ;  GrifRs  v.  Sellars,  2  Dev.  &  B.  492.  See  ante,  p.  92.  Contra,  Burt 
V.  Place,  4  Wend.  591 ;  Metropolitan  Bank  v.  Pooley,  10  App.  Cas.  210, 
ante,  p.  92,  note. 

8  Whitney  v.  Peckham,  supra.  Contra  everywhere  of  simple  acquittal. 
Thompsons.  Beacon  Rubber  Co.,  56  Conn.  493;  Bitting  w.  Ten  Eyck, 
82  Ind.  421  ;  Richter  v.  Koster,  45  Ind.  440  {conviction,  when  set  aside)  ; 
Ileldt  V.  Webster,  60  Texas,  207  ;  Eastman  v.  Monastes,  32  Oregon, 
291 ;  Apgar  v.  Woolston,  43  N.  J.  00 ;  Philpot  v.  Lucas,  101  Iowa, 
478. 

*  Thompson  v.  Beacon  Rubber  Co.,  56  Conn.  493;  Philpot  v.  Lucas, 
101  Iowa,  478,  480,  481. 

s  Hess  V.  Oregon  Co.,  31  Oregon,  503.  See  Eastman  v.  INIonastes,  32 
Oregon,  291,  295,  and  cases  cited;  ante,  p.  96,  note.     If  the  forgotten 


Chap.  III.  §  3.]  MALICIOUS  PROSECUTION.  101 

200.  There  are   other  seeming  anomalies  relating  to  this 
phase  of  probable  cause ;  one  of  them  is  found  in  the  effect 
accorded    by   some    courts  to  the   action   of   the  Action  of 
grand  jury,  or  to  that  of  a  magistrate  who  has  grand  jury 
power    only  to  bind   over  the  accused  for  trial. 

That  action  is  said  to  furnish  prima  facie  (i.  e.  sufficient) 
evidence  in  regard  to  probable  cause,  in  a  suit  for  malicious 
prosecution.^  For  example  :  The  now  defendant  prosecutes 
the  now  plaintiff  before  the  grand  jury,  on  a  charge  of  lar- 
ceny, and  the  grand  jury  throws  out  the  bill.  This  is 
deemed  prima  facie  evidence  of  want  of  probable  cause 
in  the  present  suit.^  Again :  A  magistrate  binds  over  a 
person  accused  of  crime,  who  is  afterwards  tried  and 
acquitted.  This  is  deemed  piima  facie  evidence  of  prol> 
able  cause  in  an  action  against  the  prosecutor  for  malicious 
prosecution.^ 

201.  Other  courts  have  taken  a  different  view  of  the 
matter,  denying  that  the  action  of  the  grand  jury  or  of  the 

statute  had  been  strictly  followed,  this  (which  is  now  true  generally) 
would  be  true  only  in  cases  of  conviction  of  what  was  felony  at  common 
law.  In  other  cases  the  conviction  oould  not,  by  the  old  statute,  bar  an 
action.  Nor,  by  modern  law,  could  conviction  bar  an  action  for  mali- 
cious prosecution  on  grounds  of  estoppel,  because  the  parties  to  the  two 
actions  are  different;  the  criminal  suit  being  between  the  State  and  the 
prisoner.  The  judgment  could  not,  properly  taken,  be  more  than  prima 
facie  evidence  of  probable  cause,  even  if,  of  itself  alone,  it  could  be  con- 
sidered as  amounting  to  any  evidence  on  that  point.  The  question 
before  the  petit  jury,  as  has  elsewhere  been  observed  (post,  p.  103,  note), 
is,  not  whether  there  was  probable  cause  for  the  arrest,  within  the  knowl- 
edge of  the  prosecutor,  bvit  whether  the  prisoner  is  guilty.  However,  the 
language  of  many  of  the  decisions  is  that  the  conviction  is  conclusive  of 
probable  cause ;  and  the  author  at  one  time  considered  this  to  be  cor- 
rect.    L.  C.  Torts,  196,  197.     See  ante,  p.  92. 

1  Hidy  V.  Murray,  101  Iowa,  65 ;  Philpot  v.  Lucas,  id.  478,  481 ;  Brant 
V.  Higgins,  10  Mo.  728 ;  Bostick  o.  Rutherford,  4  Hawks,  83 ;  William  v. 
Norwood,  2  Yerg.  329. 

2  See  Nicholson  v.  Coghill,  6  Dowl.  &  R.  12,  14,  Ilolroyd,  J.;  Broad  (;. 
Ham,  5  Bing.  N.  C.  722,  727,  Coltman,  J. 

3  Bacon  v.  Towne,  4  Cush.  217 ;  Graham  v.  Noble,  13  Serg.  &  R.  270 ; 
Burt  V.  Place,  4  Wend.  591.  See  Reynolds  v.  Kennedy,!  Wils.  232; 
Sutton  V.  Joh)istone,  1  T.  R.  493,  505,  506. 


102  LAW   OF   TORTS.  [Part  I. 

magistrate  is  evidence  on  the  question  of  probable  cause,  in 
the  action  for  malicious  prosecution.^  How  can  it  be,  they 
say  in  effect,  that  what  is  no  evidence  at  all  before  the  grand 
jury  or  the  magistrate  in  the  same  case  can  be  prima  facie 
evidence  before  a  petit  jury  in  a  different  case  ?  ^  To  this 
reasoning  it  might  be  added  that  the  grand  jury  or  the  magis- 
trate does  not  consider  what  prompted  the  prosecutor,  but 
whether  there  is  now  sufficient  evidence  to  justify  holding 
the  accused  further  for  trial.  But  the  contrary  doctrine, 
after  all,  is  only  a  doubtful  application  of  the  rule  of  the 
relevancy  of  a  later  fact  to  prove  an  earlier,  and  hence  may 
be  thought  not  inconsistent  with  the  true  meaning  of  probable 
cause. 

202.  Further,  it  has  been  seen  ^  that  in  this  country  an 
action  for  a  malicious  civil  suit  may  be  brought.  Now 
Discontinu-  while  it  is  held  that  the  mere  omission  to  appear 
ance  of  suit,  ^nd  prosecute  an  action,  whereby  the  defendant 
obtains  a  judgment  of  nonsuit,  is  no  evidence  of  want  of 
probable  cause,^  it  is  deemed  that  a  voluntary  discontinuance, 
being  a  positive  act,^  may  show  prima  facie  evidence  of  the 
same.  For  example  (taking  a  case  from  the  old  law  which 
permitted  an  arrest  in  an  ordinary  civil  suit)  :  The  now 
defendant  procures  the  now  plaintiff  to  be  arrested  and  held 
to  bail  in  an  action  on  contract.  The  case  comes  on  for 
trial  very  shortly  afterwards,  and  the  plaintiff  discontinues 
his  suit.  This  is  deemed  prima  facie  evidence  of  want  of 
probable  cause. ^ 

1  Xoble  V.  White,  103  Iowa,  352,  360. 

2  See  Farwell  v.  Laird,  58  Kans.  402 ;  Sweeney  v.  Perney,  40  Kans. 
102 ;  Israel  v.  Brooks,  23  111.  575.  As  touching  upon  the  question  it 
may  be  noticed  that  a  magistrate's  action  in  regard  to  probable  cause 
has  no  bearing  on  an  officer's  justification  of  probable  cause,  in  a  suit 
for  false  imprisonment. 

8  Ante,  p.  91. 

4  Sinclair  v.  Eldred,  4  Taunt.  •);  Webb  v.  Hill,  3  Car.  &  P.  485. 
■^  Sed  qu.  of  the  i-elevancy  of  such  fact. 

6  Nicholson  v.  Coghill,  G  Dowl.  &  R.  12 ;  Webb  v.  HiU,  3  Car.  &  P. 
485. 


Chap.  IH.  §  3.]  MALICIOUS  PROSFXUTION.  103 

203.  Again,  the  mere  abandonment  of  the  prosecution  by 
tlie  prosecutor,  and  the  acquittal  of  the  prisoner,  are  no  evi- 
dence of  a  want  of  probable  cause. ^     Such  facts  AbandonmentLy  C  Va  L'  I 
in  themselves  show  nothing  except  that  the  prose-  of  prosecu-    A     L  3^' 
cution  has  failed.     It  may  still  have  been  under-    ^°^"  tO    yf'6 
taken    upon   reasonable    grounds    of   suspicion. ^      Still,    the     If  ^^ 
circumstances  of  the  abandonment  may  be  such  as  to  indi- "**  '^^'^'^ 
cate  prima  facie  a  want  of  probable    cause.     For  example:   /'"'•   :>■'" 
The  defendant  presents   two  bills   for   perjuiy  against   the 
plaintiff,  but  does  not  himself  appear  before  the  grand  jury, 

and  the  bills  are  ignored.  He  presents  a  third  bill,  and,  on 
his  own  testimony,  the  grand  jury  return  a  true  bill.  The 
defendant  now  keeps  the  prosecution  suspended  for  three 
years,  when  the  plaintiff,  taking  down  the  record  for  trial, 
is  acquitted ;  the  defendant  declining  to  appear  as  a  witness, 
though  in  court  at  the  time  and  called  upon  to  testify.  These 
facts  indicate  the  absence  of  probable  cause.^ 

204.  If  the  prosecutor  takes  the  advice  of  a  practising 
lawyer  upon  the  question  whether  the  facts  within  his  knowl- 
edge *  are  such  as  to  justify  a  complaint,  assum-  Acting  on 
ing  that  he  has  full}^  fairly,  and  honestly  stated  ^®&^^  advice, 
such  facts,^  and  acts  bona  fide  upon  the  advice  given,  he 
will  be  protected  even  though  the  counsel  gave  erroneous 
advice.^     That  is,  he  will  be  protected,  though  he  might  not 

1  Willans  v.  Taylor,  6  Biiig.  183  ;  Yanclerbilt  c.  Matins,  5  Duer,  304  ; 
Cases,  58 ;  Johnson  v.  Chambers,  10  Ired.  287. 

2  The  magistrate  or  grand  jury  decides  whether  there  is  reasonable 
ground  for  putting  the  prisoner  upon  trial ;  the  jietit  jury  decides 
whether  the  prisoner  is  guilty. 

3  Willans  v.  Taylor,  6  Bing.  183. 

"  HoUiday  v.  HoUiday,  123  Calif.  26 ;  Parker  v.  Parker,  102  Iowa, 
500  ;  Black  v.  Buckingham,  174  Mass.  102,  107  ('  within  his  knowledge 
and  belief  '). 

5  Jones  V.  Morris,  97  Va.  43  ;  O'Neal  v.  McKinna,  116  Ala.  606. 

6  Terre  Haute  R.  Co.  v.  Mason,  148  Ind.  578  ;  O'Xeal  v.  McKinna, 
116  Ala.  006 ;  Williams  v.  Casebeer,  126  Calif.  77 ;  Hollidav  v.  HoUiday, 
123  Calif.  26;  Hicks  v.  Brantley.  102  Ga.  264,  Cooper  v.  Utterbach,  37 
Md.  282;  Powlowski  v.  Jenks,  115  Mich.  275;  Black  v.  Buckingham, 
174  Mass.    102,   107;  Olmstead  v.  Partridge,  16   Gray,   381;  Baker  v. 


1 


104  LAW   OF   TORTS.  [Part  I. 

have  been  in  possession  of  facts  such  as  would  have  justified  a 
prosecution  witliout  the  advice.  For  example  :  The  defend- 
ant states  to  his  attorney  the  facts  in  his  possession  concern- 
ing a  crime  supposed  to  have  been  committed  by  the  plaintiff. 
The  attorney  advises  the  defendant  that  he  can  safely  procure 
the  plaintiff's  arrest.  The  defendant  is  not  liable,  though  the 
facts  presented  did  not  in  law  constitute  probable  cause.^ 

205.  The  prosecutor  must  however,  as  the  proposition 
itself  states,  act  bona  fide  upon  the  advice  given,  if  he  rest 
his  defence  upon  such  a  ground  alone. ^  For  example:  The 
defendant  procures  the  arrest  of  the  plaintiff,  having  first 
taken  the  advice  of  legal  counsel  upon  the  facts.  This  advice 
is  erroneous,  and  it  is  not  acted  upon  in  good  faith  believing 
it  to  be  correct;  the  arrest  being  procured  for  the  indirect 
and  sinister  purpose  of  compelling  the  plaintiff  to  sanction  the 
issuance  of  certain  illegal  bonds.     The  defendant  is  liable. ^ 

206.  If,  after  taking  legal  advice  and  before  the  arrest,  new 
facts  come  to  the  knowledge  of  the  prosecutor,  he  cannot 
justify  the  arrest  as  made  on  advice,  unless  such  new  facts  are 
consistent  with  the  advice  which  has  been  given.  If  they 
should  be  of  a  contrary  nature,  casting  new  doubt  upon  the 
party's  guilt,  the  prosecutor  cannot  safely  proceed  to  procure 
an  arrest  except  upon  new  advice ;  unless  indeed  the  entire 
chain  of  facts  in  his  possession  shall  satisfy  the  court  that 
there  existed  a  reasonable  ground  for  his  action.  To  make 
use  of  the  advice  given,  when  the  new  facts  indicate  that  the 
accused  is  not  guilty,  would  not  be  to  act  upon  the  advice  in 
good  faith.* 

Hornick,  57  S.  C.  213;  Cole  y.  Curtis,  16  Mian.  182;  Hess  v.  Oregon 
Co.,  31  Oregon,  503;  Ravenga  v.  Mackintosh,  2  B.  &  C.  693;  Snow  v. 
Allen,  1  Stark.  502. 

1  Snow  V.  Allen,  supra. 

2  O'Neal  V.  McKinna,  supra ;  Ravenga  v.  Mackintosh,  2  B.  &  C.  693. 
Whether  the  advice  given  was  given  in  good  faith  is  immaterial.  San- 
dell  V.  Sherman,  107  Calif.  397;  Seabridge  v.  McAdam,  119  Cal.  460. 

^  Ravenga  v.  Mackintosh,  supra.  See  Hewlett  v.  Cruchley,  5  Taunt. 
277,  283. 

*  See  Fitzjohn  v.  Mackinder,  9  C.  B.  n.  s.  505,  531,  Ex.  Ch.,  Cock- 
burn,  C.  J.;  Cole  V.  Curtis,  10  Minn.  182. 


Chap.  III.  §  3.]  MALICIOUS   PKOSECUTION.  105 

207.  Again,  if  the  only  defence  be  that  the  prosecutor 
acted  upon  legal  advice,  a  breach  of  duty  may  still  be  made 
out  if  it  appear  that  the  prosecutor  untruly  stated  to  the 
counsel  the  facts  within  his  knowledge.  The  plaintiff's  case, 
so  far  as  it  rested  on  the  proof  of  want  of  probable  cause, 
would  be  established  by  showing  that  the  actual  facts  known 
to  the  prosecutor  (differing  from  those  on  which  the  advice 
was  obtained)  showed  that  he  had  no  reasonable  ground  for 
instituting  the  prosecution. 

208.  The  result  is,  that  the  defence  of  advice  of  legal 
counsel,  to  establish  probable  cause,  must  not  be  resorted  to 
as  a  mere  cover  for  the  prosecution,  but  must  be  the  result 
of  an  honest  and  fair  purpose ;  and  the  statement  made  at  the 
time  by  the  prosecutor  to  his  counsel  must  be  full  and  true, 
and  consistent  with  that  purpose.^ 

209.  This  defence  of  having  acted  upon  legal  advice  is,  it 
seems,  a  strict  one,  confined  to  the  case  of  advice  obtained 
from  lawyers  admitted  to  practise  in  the  courts.^  Such  per- 
sons are  certified  to  be  competent  to  give  legal  advice,  and 
their  advice  when  properly  obtained  and  acted  upon  is  con- 
clusive of  the  existence  of  probable  cause.  But  if  the  prose- 
cutor act  upon  the  advice  of  'a  person  not  a  lawyer,  and 
therefore  not  declared  competent  to  give  legal  advice,  the 
facts  must  be  shown  upon  which  the  advice  was  obtained, 
however  honestly  and  properly  it  was  sought  and  acted  upon. 
It  is  not  enough,  by  the  better  view,  that  the  advice  was 
given  by  an  officer  of  the  law,  professing  familiarity  with 
its  principles,  if  such  a  person  were  not  a  lawyer.  For  ex- 
ample: The  defendant  procures  the  arrest  of  the  plaintiff 
upon  advice  of  a  justice  of  the  peace,  with  whom  he  has  been 

1  Walter  v.  Sample,  25  Penn.  St.  275. 

'^  It  is  held  in  Cole  v.  Andrews,  74  Minn.  93,  that  the  relation  of 
attorney  and  client  must  exist  between  tlie  person  asking  and  the  person 
receiving  the  advice  to  make  the  case  one  of  probable  cause  ;  which  is 
contra  to  Hess  v.  Oregon  Co.,  31  Oregon,  503,  to  Wenger  ik  Phillips,  105 
Penn.  St.  214,  and  to  Oliver  v.  Pate,  43  Ind.  132.  The  last  named  case  is 
denied  in  Cole  ('.  Andrews.  The  cases  cited  are  cases  of  advice  given  by 
a  prosecuting  officer.  See  also  Williams  v.  Casebeer,  126  Calif.  77,  advice 
by  a  police  judge. 


106  LAW  OF  TORTS.  [Part  L 

in  the  habit  of  advising  on  legal  matters ;  but  the  justice  is 
not  a  lawj-er.     This  is  not  evidence  of  probable  cause.  ^ 

210.  The  want   of   probable   cause   is   not  to  be  inferred 

because   of   mere    evidence    of    malice,    since  a   person   may 

maliciously  prosecute  another   against  whom   he 
Malice  does  .^    j-  _  o 

not  show  h'^is   the    strongest   evidence ;    whom    indeed    he 

probable  j^j^^y  have  caught  in  the  commission  of  the  crime.  ^ 

cause. 

There  must  be  some  evidence  indicating  that  the 

prosecutor   instituted    the   suit   under   circumstances    which 

would  not  have  induced  a  cautious  man  to  act. 

211.  It  should  be  observed  finally  that  it  may  be  neces- 
sary for  the  plaintiff,  even  in  a  jury  case,  to  convince  the 
Action  of  the  judge  of  the  want  of  probable  cause  upon  the  facts 
judge.  proved.  The  facts  material  to  the  question  of 
probable  cause  must  be  found  by  the  jury ;  but  the  judge  may 
have  to  decide  whether  the  facts  so  found  establish  probable 
cause  or  want  of  it.     That  is  a  question  of  law.^ 

§  4.    Op  Malice. 

212.  To  make  out  a  breach  of  duty  by  the  defendant,  the 

J     plaintiff  must  also  produce  evidence  that  the  prose- 
ice  necessary :  cutiou  was  instituted  with  express  or  actual  mal- 
ma'uce^^"^       ice  towards  the  accused.^     Malice  is  not  to  be 
question  of       inferred  because  of  mere  proof  of  a  want  of  prob- 
able cause,  ^  any  more  than  want  of  probable  cause 

1  Beal  V.  Robeson,  8  Ired.  276.  But  see  Williams  v.  Casebeer,  126 
Calif.  77. 

2  Turner  v.  Ambler,  10  Q.  B.  252,  257 ;  Boyd  v.  Cross,  35  Md.  19L 

^  Paiiton  V.  Williams,  2  Q.  B.  169,  Ex,  Ch.  ;  Lister  v.  Ferryman,  L.  R. 
4  H.  L.  521;  Abrath  v.  Northeastern  Ry.  Co.,  11  App.  Cas.  247;  Uietz  v. 
Langfitt,  63  Penn.  St.  234  ;  Driggs  v.  Burton,  44  Yt.  124  ;  Boyd  v.  Cross, 
supra ;  Drumm  v.  Cessnum,  58  Kans.  331. 

*  Vanderbilt  v.  Mathis,  5  Duer,  304 ;  Cases,  58 ;  Pangburn  v.  Bull, 
1  Wend.  345 ;  Carson  v.  Edgeworth,  43  Mich.  241 ;  Dietz  v.  Landfitt,  63 
Penn.  St.  234;  Gabel  v.  Weisensee,  49  Texas,  131;  Hicks  v.  Brantley, 
102  Ga.  264 ;  Torsch  v.  Dell,  88  Md.  459,  468,  laying  down  the  meaning 
of  the  term,  on  which  see  ante,  pp.  16-23. 

6  Vanberbilt  v.  Mathis,  5  Duer,  304;  Cases,  58;  Griffin  v.  Chubb, 
7  Texas,  603,  617. 


Chap.  III.  §  5.]  MALICIOUS  PROSECUTION.  107 

is  to  be  inferred  because  of  mere  proof  of  malice ;  it  may  Ije 
inferred  as  a  fact  from  want  of  probable  cause,  but  it  is  not 
a  necessary  inference.^  A  man  may  institute  a  prosecution 
against  another  without  malice  either  in  the  legal  or  the  pop- 
ular sense,  though  he  had  no  sufficient  ground  for  doing  so.^ 

213.  The  jury  must  be  allowed,  and  it  is  their  duty,  to 
pass  upon  the  question  of  malice  as  a  distinct  matter.  There 
is  therefore  no  such  thing  in  the  law  of  malicious  prosecution 
as  implied  malice  or  malice  in  law.^  For  example:  Evidence 
having  been  introduced  in  an  action  for  a  malicious  prose- 
cution, which  showed  that  the  defendant  had  instituted  the 
prosecution  without  probable  cause,  the  judge  instructs  the 
jury  that  there  are  two  kinds  of  malice,  malice  in  law  and 
malice  in  fact,  and  that  in  the  present  case  there  was  malice 
in  law  because  the  prosecution  was  wrongful,  being  without 
probable  cause.  This  is  erroneous;  the  existence  of  malice 
is  a  question  for  the  jury.* 

§  5.    Of  Damage. 

214.  If  the  charge  upon  which  the  prosecution  was  insti- 
tuted was  such  as  (being  untrii»e)    would   have    constituted 
actionable  slander  had  it  not  been  preferred  in  ^hen  damage 
court,  the  plaintiff,  upon  proof  of  the  termination  need  not  be 
of  the  prosecution,  the  want  of  probable  cause,   ^^°^^ 

and  malice,  has  made  out  a  case,  and  is  entitled  to  judgment. 
It  is  not  necessary  for  him  to  prove  that  he  has  sustained  any 
pecuniary  damage.  For  example:  The  defendant  causes 
the  plaintiff  to  be  indicted  for  the  stealing  of  a  cow,  falsely, 

1  O'Neal  V.  McKinna,  116  Ala.  606;  Hicks  v.  Brantley,  102  Ga.  264; 
Ilelwig  V.  Beckiier,  140  Ind.  131  ;  McGowan  v.  McGowau,  122  N.  C.  145; 
Carson  v.  Edgeworth,  43  Mich.  241  ;  Dietz  v.  Langfitt,  63  Penn.  St.  234. 
But  see  Torsch  v.  Dell,  88  Md.  459,  467,  that  want  of  probable  cause 
raises  a  prima  facie  presumption  of  malice,  on  authority  of  Boyd  v.  Cross, 
35  Md.  197;  which  is  contrary  to  the  authorities  generally. 

2  Griffin  v.  Chubb,  supra,  at  p.  616.  As  to  the  legal  sense  of  malice, 
as  the  term  is  now  rightly  to  be  taken,  see  ante,  pp.  16-23. 

8  Mitchell  V.  Jenkins,  5  B.  &  Ad.  588 ;  Carson  v.  Edgeworth,  supra. 
*  Mitchell  V.  Jenkins,  supra ;  Vanderbilt  v.  Mathis,  supra. 


108  LAW  OF  TORTS.  [Part  I. 

without  probable  cause,  and  of  malice.  The  plaintiff  is  enti- 
tled to  recover  without  producing  evidence  that  he  has  sus- 
tained any  actual  damage.^ 

215.  But  it  has  been  decided  that  it  is  only  for  the  prose- 
cution of  a  charge  the  mere  oral  imputation  of  which  would 
constitute  actionable  slander  that  the  institution  of  the  prose- 
cution can  be  actionable  without  damage.^  For  example: 
The  defendant  falsely  prefers  against  the  plaintiff  a  simple 
charofe  of  assault  and  batterv,  without  cause  and  with  malice. 
The  plaintiff  cannot  recover  for  a  malicious  prosecution  with- 
out proof  of  special  damage.^ 

216.  It  follows  that  this  action  for  a  malicious  prosecution 
cannot  be  maintained  without  proof  of  damage  when  the 
prosecutor  has  procured  the  indictment  of  the  plaintiff  for  the 
commission  of  that  which  is  not  a  criminal  offence.  For 
example:  The  defendant  procures  the  plaintiff  to  be  indicted 
for  the  killing  of  the  former's  cattle.  The  plaintiff  must 
prove  special  damage;  the  offence,  though  charged  as  a 
crime,  being  only  a  trespass.* 

§  6.    Of  Want  of  Jurisdiction,  etc. 

217.  If  the  prosecution  fail  by  reason  of  the  circumstance 
that  the  court  in  issuing  its  warrant  exceeded  its  jurisdiction, 
What  action  or  that  the  warrant  or  indictment  was  defective, 
proper.  the  question  may  arise  whether  the  accused  should 
sue  for  malicious  prosecution,  for  false  imprisonment  if  there 
was  an  arrest,  or  for  slander  if  the  charge  was  defamatory. 
In  certain  cases  it  is  plain  that  he  may  bring  an  action  for 
false  imprisonment;  for  which  the  reader  is  referred  to  the 
chapter  on  that  subject.  It  would  give  him  an  obvious  ad- 
vantage to  sue  for  slander,  since  then  he  would  not  be  com- 
pelled to  prove  a  want  of  probable  cause  or  the  existence  of 

1  See  Frierson  v.  Hewitt,  2  Hill  (S.  C),  499  ;  Byne  v.  Moore,  5  Taunt. 
187,  Mansfield,  C.  J.;  s.  c.  L.  C.  Torts,  181. 

2  Byne  v.  Moore,  supra.  See  Quartz  Hill  Mining  Co.  v.  Eyre,  21 
Q.  B.  biv.  671,  692. 

3  Byne  i\  Moore,  supra. 

*  Frierson  v.  Hewitt,  2  Hill  (S.  C),  499. 


Chap.  III.  §  7.]  MALICIOUS   PROSECUTION.  109 

malice;  it  may  be  that  that  remedy  is  applicable.^  The  or- 
dinary remedy  against  the  prosecutor  ajjpears  to  be  an  action 
for  malicious  prosecution, ^  unless  the  prosecutor  participated 
in  making^  a  false  arrest. 

§  7.   Of  Kindred  Wrongs. 

218.  In  connection  with  malicious  prosecution  there  is  a 
whole  group  of  kindred  wrongs,  kindred  in  name  at  least, 
which  deserve  to  be  distinguished  and  explained ;     Kindred 
to  wit,  wrongs  of  malicious  arrest,  malicious  at-     wrongs 
tachment  or  execution,  malicious  search,  and  mali- 
cious abuse  of  process,  —  and  perhaps  others. 

219.  These  wrongs  differ  as  a  whole  from  malicious  pros- 
ecution in  this,  that  while  the  prosecution  in  the  last-named 
wrong  is  an  original  proceeding,  the  arrest,  attach-  jj^^  ^^^^^ 
ment,  execution,  or  other  act  in  these  kindred  wrongs  differ 

,,  ,  .,,  ,     from  mali- 

wrongs  IS  usually  a  secondary  or  ancillary  proceed-  cious  prose- 

ing  in  some  original  action  which  may  have  been  ''^^^°'^- 
perfectly  lawful.    It  will  be  assumed  accordingly  that  the  origi- 
nal proceeding  in  these  cases  was  lawful.     How  these  wrongs 
severally  differ  from  malicious  prosecution  will  now  be  seen. 

220.  Malicious  arrest  as  a  tort  differs  from  malicious  prose- 
cution in  perhaps  two  particulars  touching  the  proof  required 
to  make  a  cause  of  action,  to  wit,  malice  and  the  termination 
of  the  prosecution  or  suit. 

221.  In  regard  to  malice,  it  appears  to  be  enough  that  the 
arrest  was  wrongful,  —  in  what  way  is  probably  immaterial. 
Thus  it  appears  to  be  enough  that  the  arrest  was  Malice :  prob- 
without  probable  cause ;  malice,  if  that  is  true,  ^^^^  cause. 

1  See  L.  C.  Torts,  205,  and  cases  cited. 

2  Pippet  V.  Hearn,  5  B.  &  Aid.  631  ;  Morris  v.  Scott,  21  Wend.  281; 
Stone  V.  Stevens,  12  Conn.  219 ;  Hays  v.  Younglove,  7  B.  Mon.  545  ; 
Shaul  V.  Brown,  28  Iowa,  37.  See  Braveboy  v.  Cockfield,  2  McMull.  270 ; 
Turpin  v.  Remy,  3  Blackf.  210.  Contra,  Bixby  v.  Brundige,  2  Gray,  129. 
If  the  supposed  court  was  no  court  known  to  the  law,  as  e.  g.  if  it  was 
only  some  self-constituted  body  like  a  vigilance  committee,  an  action  for 
defamation  could  certainly  be  maintained. 


110  LAW   OF  TORTS.  [Paet  I. 

being  only  a  fiction  and  not  a  distinct  entity  requiring  proof  .^ 
If  however  malice  as  an  entity  must  actually  be  proved,  as  for 
instance  by  evidence  that  the  defendant  procured  the  arrest 
with  knowledge  that  there  was  no  probable  cause  for  it,^ 
there  is  no  difference  in  the  point  of  malice  between  the 
two  wrongs.  However  that  may  be,  it  is  clear  that  ma,lice, 
in  whatever  sense,  would  not  make  an  arrest  wrongful,  if 
there  was  probable  cause  for  it;  there  is  no  difference  be- 
tween the  two  wrongs  in  that  particular. 

222.  In  regard  to  the  termination  of  the  prosecution,  it 
seems  to  be  held  in  England  that  an  action  for  a  malicious 

arrest  under  secondary  process  cannot  be  brought 
Termination.  .-t    ,^  •    •      7  .•  x-         i 

until  the  original  prosecution  or  action  has  come 

to  an  end.3  But  such  a  rule  would  appear  to  be  unsound.  It 
should  seem  to  be  enough  that  the  warrant  has  been  set  aside, 
if  any  termination  of  proceedings  be  necessary.  Thus  if  a 
man  has  been  wrongfully  arrested  in  an  action  on  contract, 
he  ought  in  reason  to  be  entitled  to  sue  at  once  upon  discharge 
for  any  damage  he  has  sustained,  and  not  compelled  to  wait 
the  event  of  the  original  action.'*  The  chief  reason  for  requir- 
ing a  termination  of  tlie  prosecution,  in  suits  for  malicious 
prosecution,  to  wit,  that  otherwise  there  might  be  inconsistent 
judgments,  is  not  true  of  the  case  in  question ;  judgment 
that  the  defendant  procured  the  arrest  wrongfully  cannot  be 
inconsistent  with  the  right  of  that  party  to  judgment  on  the 
contract.  Such  is  the  American  doctrine  in  regard  to  mali- 
cious attachment,^  as  will  be  seen  ;  and  it  may  well  be  doubted 
whether  there  is  any  ground  for  a  distinction  on  this  point  be- 
tween the  two  cases. 

1  As  to  malice  as  an  entity  and  malice  as  a  fiction,  see  ante,  pp.  16-22. 

2  Ante,  p.  17.     See  Swift "i^  Witchard,  lO.S  Ga.  103,  196. 

8  Jenings  v.  Florence,  2  C.  B.  n.  s.  467  ;  Grainger  v.  Hill,  IBing.  N.  C. 
212  ;  Cases,  67, 72,  Tindal,  C.  J.  Jenings  v.  Florence,  the  later  of  these 
cases,  speaks  only  of  a  termination  of  the  proceedings ;  but  in  Grainger 
i».  Hill  it  is  said  that  the  original  suit  must  have  terminated.  For  other 
cases  in  regard  to  malicious  arrest,  see  Daniels  v.  Fielding,  16  M.  &  W. 
200 ;  Gibbons  v.  Alison,  3  C.  B.  181 ;  Phillips  v.  Naylor,  4  H.  &  N.  565. 

*  See  Swift  v.  Witchard,  103  Ga.  193,  196. 

*  Zinn  V.  Rice,  151  Mass.  1. 


Chap.  III.  §  7.]  MALICIOUS  PROSECUTION.  Ill 

223.  Damage  must  no  doubt  be  proved  unless  the  arrest  was 
procured  by  defamatory  allegations  which  as  slander  would 
be  actionable  per  se.      There  appears  to  be  no 
difference  between  cases  of  malicious  arrest  and  ^^°' 
malicious  prosecution  in  that  respect. 

224.  To  sum  up :  In  an  action  for  a  malicious  arrest  the 
plaintiff  has  to  prove  want  of  probable  cause,  the  termi- 
nation of  the  proceeding  in  which  the  arrest  was  made,  — 
possibly  of  the  original  proceeding,  —  and  damage  or  not, 
according  to  the  nature  of  the  allegations  made  in  procuring 
the  arrest.  If  the  process  was  void  on  its  face,  the  case  is 
one  for  an  action  for  false  imprisonment.^ 

225.  Malicious  attachment  as  a  tort  appears  to  be  very  sim- 
ilar.    Malice  as  a  distinct  entity,  at  least  as  motive,  is  no 

necessary  part  of  the  cause  of  action,  though  it  „  ,.  , 

"^    ^  '  &  Malice :  prob- 

may  well  be  present  and  strengthen  a  case  already  able  cause : 
made.^  An  attachment  of  property  could  not  be  ^^'^^^^^^^  ®^y- 
wrongful  simply  because  it  was  procured  by  malicious  mo- 
tives. What  must  be  proved  is  want  of  probable  cause,  as 
by  evidence  that  the  attachment  was  manifestly  excessive,^ 
and  damage;  and  that  is  all,  unless  knowledge  of  want  of 
probable  cause  is  required.'* 

226.  It  is  not  necessary  for  the  plaintiff  (defendant  in  the 
original  suit  and  attachment)  to  await  the  result  of  the  origi- 
nal action  ;  enough  that  the  malicious  attachment 

has  worked  damage  to  the  plaintiff.     The  rule  in 
malicious  prosecution  requiring  a  termination  of  the  original 
proceedings  is,  by  its  terms  and  nature,  limited  to  prosecutions 
'  to  establish  a  charge  or  cause  of  action,  and  cannot  include 


1  See  the  chapter  on  that  subject  for  the  nature  of  such  an  action. 

2  See  Zinn  v.  Rice, 154  Mass.  1,  in  its  statement  of  facts. 
'  Savage  v.  Brewer,  16  Pick.  453. 

*  K  the  attachment  was  manifestly  excessive,  the  attaching  party 
would  knoio  that  there  was  no  probable  cause,  and  that  would  be  malice 
as  an  entity.  Savage  v.  Brewer,  16  Pick.  453;  Sommer  v.  Wilt,  4  Serg. 
&  R.  19.  See  ante,  pp.  17-20.  For  other  cases  of  malicious  attachment, 
see  Stewart  v.  Cole,  46  Ala.  646 ;  Spengler  v.  Davy,  15  Gratt.  381. 


112  LAW   OF   TORTS.  [Part  I. 

an  ex  parte  use  of  process  incidental  and  collateral '  thereto, 
'in  defence  to  wliicli  the  falsity  of  the  charge  cannot  be 
shown.'  1  Hence  tiiere  is  no  inconsistency  between  the  suit 
for  the  malicious  attachment  and  the  suit  in  which  the  at- 
tachment was  made. 

227.  Where  attachment  of  property  is  procured  under  stat- 
utory authority  only,  the  attaching  party's  justification  must 
statutory  of  course  be  found  in  the  statute.  Whether  the 
attachment,  j^^t  is  wrongful  or  not,  and  what  must  be  proved 
to  make  a  cause  of  action,  will  be  determined  accordingly. 
But  it  is  believed  that  the  statutes  in  such  cases  always  re- 
quire the  person  attaching  to  show  probable  cause.  Want  of 
probable  cause  and  damage  would  accordingly  make  a  case, 
as  in  non -statutory  attachment. 

228.  In  regard  to  malicious  execution,  little  need  be  said.- 
Malice  as  motive  could  not  make  the  levy  wrongful ;  a  mani- 
Maiice:  ex-  festly  exccssive  levy  would  be  wrongful,  but  it 
cessive  levy,  -would  be  wrongful  only  in  respect  of  the  excess, 
supposing  the  subject  severable,  and  of  any  damage  done. 
For  such  damage  the  officer  would  be  liable  accordingly ;  tlie 
plaintiff  in  the  execution  also,  if  he  directed  or  participated 
in  the  wrong.  The  action,  whether  in  such  a  case,  or  for 
levying  execution  of  a  judgment  known  to  be  satisfied, ^  would 
naturally  be  for  a  wrongful  taking  of  property,  —  trespass, 
trover,  or  the  like,  —  a  very  different  remedy  from  that  for  a 
malicious  prosecution.* 

229.  Malicious  search  is  in  this  country  a  statutory  wrong, 
statutory  and  though  possibly  a  common-law  wrong  also.  It  has 
constitutional  even  been  made  a  subject  of  constitutional  law ; 
must  be  taking  that  form  on  or  after  the  separation  of  Amer- 
proved.  ica  from  England,  because  of  differences  which 

1  Zinn  V.  Rice,  supra,  W.  Allen,  J. 

2  See  Churcliill  v.  Siggers,  3  El.  &  B.  938 ;  Jenings  v.  Florence,  2  C.  B. 
N.  s.  4G7  ;  Craig  v.  Hasell,  4  Q.  B.  481 ;  Sommer  v.  Wilt,  4  Serg.  &  R. 
19 ;  Hilliard  v.  Wilson,  65  Texas,  286. 

8  Deyo  V.  Van  Valkenburgh,  5  Hill,  242. 
*  See  later  chapters. 


Chap.  III.  §  7.]  MALICIOUS  PROSECUTION.  113 

had  arisen  between  the  colonies  and  the  mother  country  ovei 
search  warrants. ^  The  fourth  amendment  to  the  Constitu- 
tion of  the  United  States  provides  that  '  no  warrants  shall 
issue  but  upon  probable  ccmse,  supported  by  oath  or  affirma- 
tion, and  particularly  describing  the  place  to  be  searched  and 
the  persons  or  things  to  be  seized. '  This  is  only  a  solemn 
declaration  of  the  English  common  law.  What  must  be 
proved  to  set  aside  the  warrant,  or  to  make  a  cause  of  action 
if  the  warrant  has  done  its  work,  is  indicated  by  the  quota- 
tion ;  though  if  the  warrant  was  absolutely  void,  the  remedy 
will  be  trespass  or  trover. 

230.  In  the  last  of  these  kindred  wrongs,  malicious  abuse 
of  process,  process  which  in  itself  may  have  been  lawful  has 
been  perverted  to  a  purpose  not  contemplated  T^J  «  j  j.    *  ^j^ 
it.     In  other  words  the  exigency  of  the  writ  has  wrong:  what 

not  been  followed.     Malice  again,  as  a  distinct  must  be 

.  proved, 

entity,  plays  no  part  ni  the  case;  all  that  is  re- 
quired for  a  cause  of  action  is  proof  that  the  writ  has  been 
applied  to  a  purpose  not  named  or  implied  by  it,  to  the  dam- 
age of  the  plaintiff.  Perversion  or  '  abuse'  of  the  process 
gives  the  name  '  malicious  '  to  the  case ;  the  malice  is  fictitious, 
or  may  be. 

231.  It  is  not  necessary  for  the  plaintiff  to  wait  the  ter- 
mination of  the  original  proceeding  or,  since  the  process 
has  not  been  followed,  to  prove  that  there  was  no  probable 
cause  for  the  issuance  of  the  particular  process.  For  exam- 
ple: The  defendant,  under  a  warrant  for  the  arrest  of  the 
plaintiff  in  an  action  of  debt,  according  to  law,  makes  use  of 
the  same  to  extort  property  from  the  plaintiff,  in  which  he 
succeeds,  to  the  damage  of  the  plaintiff".  The  plaintiff  sues 
for  the  loss  while  the  action  of  debt  is  pending,  and  with- 
out alleging  want  of  probable  cause.  He  is  entitled  to 
recover.  2 


^  As  writs  of  '  assistance  '  of  government  ofBcers. 

2  Grainger  v.  Hill,  4  Bing.  N.   C.  212;  Cases,  67.     The  original  suit 
itself  was  premature,  the  debt  not  being  due  ;  but  that  made  no  difference. 

8 


114  LAW  OF  TORTS.  [Part! 

232.   Recent  English  decisions  have  also  brought  to  light 

the  existence  of  a  right  of  action  for  maintenance.^     This  is 

a  tort  founded  upon  early  statutes  makinor  main- 

Mflillt6I19.IlCfi 

tenance  a  criminal  offence ;  ^  an  action  for  damages 
being  permitted  only  where  the  defendant  has  aided  the  pros- 
ecution of  some  suit  in  which  he  had  no  interest  or,  it  seems, 
motive  other  than  that  of  stirring  up  or  keeping  alive  strife. 
It  has  lately  been  decided  that  if  the  defendant's  conduct  was 
based  on  charity,  reasonable  or  not,  the  action  will  fail.^ 

1  Bradlaugh  v.  Newdegate,  11  Q.  B.  D.  1 ;  Harris  v.  Brisco,  17  Q.  B. 
Div.  504 ;  Metropolitan  Baok  v.  Pooley,  10  Ajip.  Cas.  210. 

2  It  is  doubtful  if  a  corporation  can  be  liable  for  the  offence.    10  App. 
Cas.  at  p.  218,  Lord  Selborne. 

2  Harris  v.  Brisco,  supra- 


CHAPTER  IV. 

2.  Lawful  Acts  done  of  Malice,  concluded. 

MALICIOUSLY  PROCURING  REFUSAL  TO  CONTRACT. 

Statement  of  the  duty.  A  owes  to  B  the  duty  not,  by 
wrongful  means,  to  procure  C  to  refuse,  to  B's  damage,  to 
contract  with  him  (B),  if  B  is  endeavoring  to  contract  with  C. 
A  by  some  authorities  does,  by  others  does  not,  owe  to  B  the 
duty  not  maliciously,  without  wrongful  means,  to  procure  C  in 
like  case  to  refuse,  to  B's  damage,  to  contract  with  him.  As 
for  malicious  interference  with  an  existing  business,  qusere. 

§  1.    Of  Means  and  Malice:  What  must  be  Proved. 

233.    The  use  of  wrongful  means  may  for  the  present  be 

dismissed  with  a  word.     Every  man  has  by  law  a  right  to 

endeavor  to  enter  into  contract.with  others,  and 

for  any  one  to  use  wrongful  means,  successfully  co^ntract  °m- 

and  with  damage,  to  prevent  the  accomplishment  terference  by 

of  the  endeavor  would  be  an  infringement  of  that  '^^o^g^^ 

°  means. 

right,  and  therefore  a  tort.     It  will  only  be  neces- 
sary to  return   to  the   subject  when  later,  in   examining  a 
particular  question,  it  becomes  necessary  to  consider  whether 
conspiring  successfully  to  prevent   the  purpose  amounts    to 
the  use  of  means,  within  the  rule. 


^» 


234.  It  remains  to  consider  maliciously  procuring  refusal  to 
contract,  where  no  wrongful  means  are  brought  to  bear. 

235.  In  former  editions  of  this  book  it  has  been  stated,  in 

effect,  that  an  action  lies  for  maliciously  procuring  one  man 

to  refuse  to  contract  with  another,  if  the  latter  „^         .   ^^ 

Change  in  the 

suffered  damage  thereby ;  but  not  without  noting  current  of 
that  the  doctrine  had  been  denied.  The  statement  ^.uthonty. 
was  founded  upon  express  decisions  both  in  this  country  and 


116  LAW  OE  TORTS.  [Part  I. 

in  England.^  But  in  the  year  1898  the  doctrine  was  repudi- 
ated in  England,  decisions  and  dicta  to  the  contrary  being 
reversed  or  overruled  by  the  House  of  Lords,  and  the  con- 
trary plainly  laid  down.^  The  principal  decision  too  in  this 
country,  upon  which  the  statement  was  based,  ^  was,  for  a 
time,  so  far  limited  to  the  facts  upon  which  it  was  decided, 
tliat  it  could  not  be  considered  authority  for  the  broad  doc- 
trine for  which  it  was  formerly  cited ;  *  but  it  has  since  been 
reinstated  to  the  full,  and  the  doctrine  again  laid  down  that 
damage  done  by  malice  is  actionable  unless  justified  by  com- 
petition or  some  other  lawful  cause. ^  Still  the  tendency  and 
perhaps  the  weight  of  authority  appear  to  be  opposed  to  this 
doctrine,  as  applied  to  maliciously  procuring  another,  by  per- 
suasion alone,  to  refuse  to  contract  with  the  plaintiff.^ 

236.    Malice  in  such  cases  is  to  be  taken  in  any  sense  of 

the  word  which  does  not  import  the  use  of  wrongful  means. 

„  ,.  .     ,        It  may  accordingly,  with  some  hesitation,  be  laid 
Maliciously  i       i  ,        ,  ■        \-        j- 

procuring  re-    down  as  the  better  rule  that  no  action  lies   tor 

tract  wi^thout  pi'ocuring  a  man  to  refuse  to  contract  with  an- 
use  of  wrong-  other,  where  there  was  no  duty  to  contract,  though 
u  means.  ^^^^  procuring  was  done  with  notice  of  the  plain- 
tiff's desire  to  contract  and  with  intent  to  do  him  harm,  if  no 
wrongful  means  was  employed.'^    For  example :  The  plaintiff's 

1  Walker  v.  Croiiin,  107  Mass.  555;  Cases,  102  ;  Graham  v.  St.  Charles 
R.  Co.,  27  L.  R.  A.  416  (La.) ;  Temperton  v.  Russell,  1893,  1  Q.  B.  715, 
C.  A.;  Cases,  109;  Flood  v.  .Jackson,  1895,  2  Q.  B.  21,  C.  A.  (since  re- 
versed ;  see  infra). 

2  Allen  V.  Flood,  1898,  A.  C.  1,  reversing  Flood  v.  Jackson  and  over- 
ruling (on  that  point)  Temperton  v.  Russell,  supra. 

3  Walker  v.  Cronin,  supra. 

4  Rice  V.  Albee,  161  Mass.  88.  But  see  the  dissenting  opinion  of  Mr. 
Justice  Holmes  in  May  v.  Wood,  172  Mass.  11,  14,  and  Plant  v.  Woods, 
cited  in  the  next  note,  and  infra,  p.  121,  note  1. 

5  Plant  V.  Woods,  57  N.  E.  Rep.  1011  (Mass.),  Holmes,  C.  J.,  dissent- 
ing on  the  ground  that  the  court  had  gone  a  little  too  far  that  way.  But 
Plant  V.  Woods  was,  on  its  facts,  a  plain  case  of  wrongful  means,  for 
there  were  threats  of  violence,  coercion,  and  intimidation. 

6  Ante,  pp.  22,  23. 

'  Rice  V.  Albee,  164  Mass.  88;  May  v.  Wood,  172  Mass.  11  ;  Boyson 
V.  Thorn,  98  Calif.  578 ;  Allen  v.  Flood,  1898,  A.  C.  1.     A  fortiori  is  this 


Chap.  IV.  §  1.]    PROCURING  REFUSAL  TO  CONTRACT.  117 

declaration  alleges  that  at  the  time  in  question  he  was 
engaged  in  the  business  of  manufacturing  cotton  goods,  and 
had  built  up  a  valuable  business,  but  needed  more  capital 
therein;  that  he  had  entered  into  negotiations  with  one  W 
for  a  partnership,  who  was  to  pay  $10,000  for  a  half  interest 
therein ;  that  the  terms  of  partnership  had  been  agreed  to  and 
reduced  to  writing ;  and  that  the  articles  were  about  to  be 
signed,  when  the  defendant,  knowing  the  premises,  and  un- 
lawfully intending  to  interfere  in  the  execution  of  the  articles 
to  the  injury  of  the  plaintiff  in  his  business,  unlawfully, 
maliciously,  and  unjustifiably  persuaded  and  induced  W  not 
to  enter  into  the  said  contract,  and  that  W  accordingly  re- 
fused to  sign  the  articles ;  whereby  the  plaintiff  suffered  dam- 
age set  out.  This  does  not  show  any  breach  of  legal  duty  by 
the  defendant;  there  is  no  allegation  of  misrepresentation  or 
other  wrongful  acts,  and  '  no  interference  is  alleged  with  an 
existing  business  or  with  existing  contracts. '  ^  Again :  The 
defendants  maliciously,  but  without  using  wrongful  means, 
procure  the  Glengall  Iron  Company,  which  theretofore  had 
been  employing  the  plaintiffs  by  the  day,  to  refuse  at  the  end 
of  a  certain  day  to  continue  to  employ  them,  the  refusal  not 
being  a  breach  of  contract  or  'other  legal  duty  by  the  com- 
pany. The  employment  would  have  continued  but  for  what 
the  defendants  did;  and  the  plaintiffs  have  suffered  damage. 
The  defendants  are  not  liable,  whatever  may  have  been  their 
motive.  They  had  a  legal  right  to  procure  the  Glengall  Iron 
Company  to  refuse  to  renew  the  employment  of  the  plaintiffs, 
if  they  used  no  wrongful  means  to  that  end,  and  malice  on 

true  where  the  procuring  is  to  refuse  to  contract  with  a  dishonest  debtor, 
and  so  preventing  him  from  doing  business.  Schultan  v.  Bavarian  Brew- 
ing Co.,  96  Ky.  224.  And  that  too  though  a  number  of  dealers  combine 
for  the  purpose.     Id. 

^  Rice  V.  Albee,  164  Mass.  88,  Field,  C.  J.,  for  the  court :  'We  do  not 
deem  it  necessary  to  consider  the  cases  which  relate  to  a  malicious  inter- 
ference with  an  existing  business  or  with  existing  contracts,  or  those 
which  relate  to  the  enticing  away  of  servants  actually  employed  or  under 
contracts  of  employment,  or  the  enticing  away  of  a  wife  or  husband.' 
The  interference  complained  of  was  with  an  attempt  to  extend  the  busi* 
ness,  not  with  the  running  of  '  existing  business.' 


118  LAW  OF  TORTS.  [Part  I. 

their  (the  defendants')  j^art  towards  the  plaintiff  could  not 
convert  that  right  into  a  legal  wrong,  ^ 

237.  The  '  right  to  contract, '  of  common  speech,  plainly  is 
no  answer  to  this  doctrine.  The  phrase  is  too  broad.  A  has 
Meaning  of  ^^^  ^®S^^  right  to  contract  with  B,  since  B  may 
right  to  refuse.     A  has  only  a  legal  right  to  try  to  induce 

B  to  contract  with  him. 2  But  C  has  a  like  legal 
right,  a  right  to  try  to  induce,  and  hence  to  induce,  B  to  con- 
tract with  Jmn  in  the  matter;  that  is  to  say,  he  has  a  legal 
right  to  induce  B  not  to  contract  with  A.^  That  being  the 
case,  it  seems  that  it  should  make  no  difference  what  C's 
motive  may  be,  whether  the  good  motive  of  desiring  to  have 
B  contract  with  Jmn  or  the  bad  motive  of  wishing  to  injure 
A.*  'A  man  has  a  [legal]  right  to  say  what  he  pleases,  to 
induce,  to  advise,  to  exhort,  to  command,  provided  he  does 
not  slander  or  deceive  or  commit  any  other  of  the  wrongs 
known  to  the  law  of  which  speech  may  be  the  medium. '  ^  If 
motive  is  to  take  part  in  the  matter  and  modify  the  result,  it 
must,  it  seems,  be  on  the  dangerous  ground  of  public  policy.^ 

238.  Would  it  affect  the  case  if  C  were  joined  by  others; 
that  is,  would  it  give  a  right  of  action  to  A  that  two  or  more 

1  Allen  V.  Flood,  1898,  A.  C.  1.     But  see  note  1,  p.  121,  infra. 

2  That  nien  have  a  legal  right  to  refuse  to  contract,  for  instance  to  say 
that  they  will  not  work  with  men  of  a  particular  organization,  or  of  no 
organization,  has  scarcely  been  doubted  ;  it  is  now  at  least  fairly  beyond 
dispute.  Allen  v.  Flood ;  Arthur  v.  Oakes,  63  Fed.  Rep.  310,  317 ;  Davis 
V.  United  Engineers,  51  N.  Y.  Sup.  180,  Rumsey,  J.,  dissenting. 

3  See  Allen  v.  Flood,  supra.  Lord  Herschell.  The  question  is  not 
merely  whether  A  has  a  legal  right,  but  whether  C  has  infringed  that 
right ;  this  he  has  not  done  if  he  had  a  legal  right  to  do  what  he  did. 

*  The  two  parts,  inducing  B  not  to  contract  and  inducing  him  to  con- 
tract with  C,  the  defendant,  cannot  be  spliced  together  as  one  indivisible 
thing  to  be  required,  because  the  latter  part,  in  its  connection  with  the 
former,  is  only  a  motive  to  it ;  though  alone  of  course  it  would  not  be 
motive.     Such  appears  to  be  the  effect  of  Allen  v.  Flood. 

6  Allen  V.  Flood,  at  p.  138,  per  Lord  Herschell. 

«  Mogul  Steamship  Co.  v.  McGregor,  1892,  A.  C.  25,  45,  Lord  Bram- 
well,  on  pubhc  policy. 


Chap.  IV.  §  1.]  PROCURING  REFUSAL  TO  CONTRACT.       119 

persons  conspired  in  inducing  B  to  refuse  to  contract  with 
him,  with  intent  to  injure  A?     Tlie  question  is  Effect  of 
one  of  difficulty,  but  it  seems  that  it  should  be  spiracy,  as 
answered  in  the  negative.    There  would  only  be  a  ™®^"^- 
conspiracy  to  do  a  lawful  thing  (if  C  alone  did  it,  it  would 
not  be  unlawful,  as  we  have  seen),  unless  the  combination 
itself  amounts  to  the  use  of  '  means.'     If  to  combine  be  to 
use  'means,'  then   the   combination   or  conspiracy  may  be 
using   wrongful    means   and   hence,    with    damage,    be   un- 
lawful. 

239.  To  combine  in  bringing  about  the  object  is  plainly  to 
use  means  in  one  sense  of  the  word ;  and  it  is  certain  that  two 
or  more  may  be  able  to  do  harm  and  so  make  themselves 
liable  for  the  damage,  where  one  might  not  be  equal  to  it.^ 
An  organ-grinder  and  monkey  before  one's  window  might  not 
be  a  nuisance,  but  fifty  organ-grinders  and  monkeys  undoubt- 
edly would  be.  Or  to  give  the  classical  illustration,  one  man 
probably  could  not  hiss  an  actor  off  the  stage,  but  a  hundred 
men  might  do  it.^ 

240.  The  inference  has  been  drawn  that  to  combine  and 
conspire  is  to  use  '  means  '  within  the  rule  under  considera- 
tion.^  But  the  inference  is  hardly  justified.  The  unlawful- 
ness of  the  result,  where  the  result  is  unlawful,  is  due,  not 
to  the  means  employed,  except  incidentally,  but  to  doing  the 
act  itself,  that  being  a  nuisance,  trespass,  or  the  like ;  which 
would  be  equally  unlawful  if  done  by  one  person,  if  one 
could  do  it.  '  Means, '  in  the  sense  of  the  rule,  appears  to 
denote  measures,  such  as  misrepresentation,  used  to  bring  to 

1  Lambton  v.  Mellish,  189i,  3  Ch.  163;  Thorpe  v.  Brumfitt,  L.  R. 
8  Ch.  650;  Mogul  Steamship  Co.  v.  McGregor,  1892,  A.  C.  25,  38,  45,  52,  60 ; 
Cases,  80,  93,  98,  99  ;  s.  c.  23  Q.  B.  Div.  598  616,  624.  Lambton  v. 
Mellish  was  a  case  of  rival  caterers  in  a  public  place,  trying  to  outdo 
each  other  by  '  maddening  '  noises  in  getting  business. 

2  Gregory  v.  Brunswick,  6  Man.  &  G.  205,  953.  So  a  combination  of 
men  may  be  necessary  to  prevent  another  from  obtaining  credit  with 
them.     Schultan  v.  Bavarian  Brewing  Co.,  96  Ky.  224. 

8  Tempe.rton  v.  Russell,  1893,  1  Q.  B.  715,  Lords  Esher  and  Ludlow, 
See  also  the  intimation  of  Lord  Watson  in  Allen  v.  Flood,  1898,  A.  C 
1,  108. 


120  LAW  OF   TORTS.  [Part  I. 

pass  a  result  which  one  person  might  thus  accomplish;  it 
denotes  '  measures,  not  men.'  ^  Combinations  may  result  in 
coercion,  but  they  do  not  of  themselves  amount  to  coercion 
or  anj'thing  else  which  is  wrongful. ^ 

241.  But  a  case  of  malice  no  doubt  may  easily  be  turned 
into  a  case  of  means.  A  does  an  act  with  intent  to  harm  B  ; 
that  is  a  plain  case  of  malice.  But  A  does  the  act  with  intent 
to  harm  B,  in  order  to  bring  him  to  terms  with  himself.  A, 
A's  motive  being  gain  to  himself;  that  is  quite  as  plainly  a 
case  of  the  use  by  A  of  means  to  accomplish  his  purpose. 
The  question  then  is,  whether  or  not  the  means  are  wrongful 
ones.-^ 

§  2.    Of  Malicious   Hindrance  of  one's   'Existing 
Business'  or  Occupation. 

242.  There  remains  the  case  of  maliciously  hindering  a  per- 
son from  obtaining  contracts  for  the  carrying  on  of  his  '  exist- 
ing business,'  where  the  contracts  are  such  as  are 

Is  this  an  ex-  ^      .i  •  />   . i       i       • 

ceptionai  necessary  to  the  carrying  on  oi  the  business,  as 

case^    Con-      fg^.  instance  contracts  of  employment  of  men  to 

flictmg  views.  c  x     •  i 

carry  on  the   manuiacture  of   goods.     It  is  still 

declared  that  malicious  hindrance  of  the  kind,  resultinsf  in 

^  That  conspiring  to  do  an  act,  which  is  done,  is  not  unlawful  as 
means  unless  the  act  would  be  so  without  any  conspiracy,  see  Hutchins 
V.  Hutchins,  7  Hill,  104 ;  Cases,  76 ;  Van  Horn  v.  Van  Horn,  23  Vroom, 
281:;  24  Vroom,  .514;  27  Vroom,  318  ;  Schultan  v.  Bavarian  Brewing  Co., 
96  Ky.  224 ;  Parker  v.  Huntington,  2  Gray,  124 ;  Randall  v.  Hazelton, 
12  Allen,  412,  414 ;  O'Callahan  v.  Cronan,  i21  Mass.  114 ;  May  v.  Wood, 
172  Mass.  11,  13 ;  Rich  v.  New  York  Central  R.  Co.,  87  N.  Y.  382,  394  ; 
Kimball  v.  Harman,  34  Md.  407;  Mogul  Steamship  Co.  v.  McGregor, 
1892,  A.  C.  25;  Cases,  80  ;  Allen  v.  Flood,  supra;  and  many  other  cases. 
The  suggestion  that  conspiracy  is  means  is  new. 

2  Even  strikes  are  not  in  themselves  unlawful.  Arthur  v.  Oakes,  63 
Fed.  Rep.  310,  327  ;  Mogul  Steamship  Co.  v.  McGregor,  1892,  A.  C.  25, 
47;  Cases,  80,  95;  Farrar  v.  Close,  L.  R.  4  Q.  B.  602,  612. 

^  Accordingly  Temperton  v.  Russell,  though  treated  by  the  court  as  a 
case  of  malice,  should  have  been  treated  as  one  of  means,  regardless  of 
the  alleged  conspiracy.  The  true  question,  it  seems,  was  of  the  quality 
of  the  acts  done  by  the  defendants,  whether  rightful  or  wrongful.  So 
easy  is  it  to  conceal  means  under  a  garb  of  malice. 


I 


Chap.  IV.  §  2.]  PROCURING  REFUSAL  TO  CONTRACT.       121 

damage,  is  actionable,  though  there  was  no  procuring  of 
breach  of  contract  and  no  use  of  wrongful  means. ^  For  ex- 
ample: The  plaintiffs'  declaration  alleges  that  the  defendant 
unlawfully,  without  justifiable  cause,  molested,  obstructed, 
and  hindered  the  plaintiffs  from  carrying  on  their  business  of 
manufacturing  and  selling  boots  and  shoes,  with  the  unlaw- 
ful purpose  of  preventing  them  from  carrying  on  said  busi- 
ness, and  wilfully  persuaded  and  induced  persons  who  were 
in  the  employ  of  the  plaintiffs,  and  others  '  who  were  about 
to  enter  into '  their  employ,  to  leave  and  abandon  the  same, 
against  the  will  of  the  plaintiffs  and  to  their  special  damage. 
This  states  a  good  cause  of  action,  though  there  is  no 
allegation  that  the  plaintiffs  had  any  contract  of  service 
with  such  persons;  persuading  and  inducing  the  men  not 
to  accept  employment  offered  them  by  the  plaintiffs,  in  order 
to  prevent  the  plaintiffs  from  carrying  on  their  business, 
being  without  justifiable  cause  and  hence  malicious  and 
wrongful.^ 

243.  In  the  case  from  which  this  example  was  taken  it  was 
laid  down  by  the  court  that  a  man  has  the  right,  that  is,  the 
legal  right,  to  enjoy  the  fruits  of  his  own  enterprise,  skill, 
and  credit ;  which  was  a  right  to  freedom  from  malicious  and 

1  Walker  v.  Cronin,  107  Mass.  555 ;  Cases,  102.  And  see  the  dissent- 
ing opinion  of  Mi-.  Justice  Holmes,  with  whom  Knowlton  and  Morton, 
JJ.,  agreed,  in  May  v.  Wood,  172  Mass.  11,  14,  where  the  case  is  put  on 
still  higher  ground  than  in  Walker  v.  Cronin,  as  though  the  language  of 
that  case  had  not  been  affected  by  Rice  v.  Albee,  164  Mass.  88,  supra. 
'  I  regard  it  as  settled  in  this  Commonwealth,'  said  the  learned  judge, 
'  that  an  action  will  lie  for  depriving  a  man  of  custom,  that  is,  of  pos- 
sible contracts,  as  well  when  the  result  is  effected  by  persuasion  as  when 
it  is  accomplished  by  fraud  or  force,  if  the  harm  is  inflicted  simply  from 
malevolence  and  without  some  justifiable  cause,  such  as  competition  in 
trade.'  See  also  Plant  v.  Woods,  57  N.  E.  Rep.  1011  (Mass.),  in  which 
the  same  doctrine  is  in  effect  laid  down  by  the  court. 

2  Walker  v.  Cronin,  107  Mass.  555;  Cases,  102;  on  demurrer.  The 
only  mole.^ation  really  alleged,  it  will  be  noticed,  was  that  the  defend- 
ant maliciously  persuaded  and  induced  the  men  not  to  enter,  or 
not  to  continue  in,  the  plaintiffs'  employ.  But  persuasion  may  easily 
run  into  intimidation.  See  Plant  v.  Woods,  57  N.  E.  Rep.  1011 
(Mass.). 


122  LAW  OF  TORTS.  [Part  I. 

wanton  interference,  disturbance,  and  annoyance.  If,  it  was 
declared,  disturbance  or  loss  came  from  merely  wanton  or 
malicious  acts,  without  the  justification  of  competition  or  the 
service  of  interest  or  other  lawful  object,  it  was  a  wrong. 
The  proposition  appears  to  have  been  founded  upon  a  some- 
what narrower  and  more  definite  one  laid  down  by  Lord 
Holt  in  1706,  to  wit,  that  where  a  violent  or  malicious  act 
is  done  to  a  man's  occupation,  profession,  or  way  of  get- 
ting a  livelihood,  an  action  lies.^  But  Lord  Holt's  pro]30- 
sition  was  only  a  dictum,  and  does  not  appear  to  have  been 
adopted  as  law  in  England.  Indeed  it  has  been  denied  to 
be  law,  in  the  recent  case  in  the  House  of  Lords  already 
cited.  2 

244.  This  last  case  was,  it  is  true,  the  converse  of  the  one 
of  the  example  above  given,  in  this,  that  in  the  example  the 
action  was  brought  by  an  employer  for  hindering  his  busi- 
ness, while  in  the  English  case  the  action  was  by  servants. 
But  the  hindrance  of  the  servants  was  a  hindrance  of  them 
in  their  means  of  livelihood.  The  same  is  true  of  a  recent 
American  case  already  cited. ^  This  case  was  indeed  stronger 
than  the  one  in  the  House  of  Lords,  the  procuring  being  of 
the  breach  of  a  contract.  It  was  an  action  by  a  servant 
against  two  persons  for  maliciously  procuring  her  master  to 
discharge  her,  to  her  damage ;  a  majority  of  the  court  holding 
that  the  action  would  not  lie  unless  wrongful  means  were 
employed.^ 

245.  There  appears  then  to  be  narrow  ground  for  any 
action  for  maliciously  preventing  contract,  to  the  prejudice 
Ground  nar-  of  one's  business.  The  business  hindered  must 
rowed  as  to      have  been  an  '  existing  business ; '  but  what  differ- 

hindrance  of  .  -,  t  ^     .^  ■, 

business.         ence,  m  reason,  can  it  make  whether  a  man  has 

1  Keeble  v.  Hickeringill,  11  East,  574,  note. 

2  Allen  V.  Flood,  1898,  A.  C.  1,  132-137,  Lord  Herschell. 
8  May  V.  Wood.  172  Mass.  11. 

*  There  was  also  an  allegation  of  conspiracy,  which  was  brushed 
aside.  The  court  considered  that  the  right  of  a  master  to  damages  for 
procuring  a  breach  of  the  contract  of  service  was  special,  and  that  the 
servant  had  no  corresponding  right.     See  post,  p.  129. 


Chap.  IV.  §  2.]  PROCURING  REFUSAL  TO  CONTRACT.       123 

a  business  which  has  been  carried  on  for  a  long  time,  or 
is  trying  to  start  a  new  one?  If  there  be  any  difference, 
it  should  be  in  favor  of  the  new  venture,  because  of  the 
difficulty  of  setting  it  on  foot  and  of  the  benefit  which  may 
result  to  the  community  from  getting  it  under  way.^ 

*  As  in  the  very  case  of  Rice  v.  Albee  before  stated. 


1 


PART   11. 

UNLAWFUL  ACTS. 
BREACH    OF   ABSOLUTE   DUTY. 


CHAPTER  V. 

PROCUKING  BREACH  OP  CONTRACT. 

Statement  of  the  duty.  A,  having  knowledge  or  notice  of 
the  existence  of  a  contract  between  B  and  C,  owes  the  duty 
to  B  not  to  procure  C,  by  persuasion,  to  break  his  contract, 
to  B's  damage. 

It  should  be  remembered  that  cases  of  this  kind,  though 
nominally  cases  of  malice,  are  not  such  in  reality.  The 
knowledge  or  notice  of  the  relation,  called  '  malice,'  is  only 
a  necessary  part  of  the  breach  of  duty  complained  of  in 
the  sense  that  danger  must  be  observed  or  observable  (in 
ordinary  cases)  to  create  liability.^  Proof  of  malice  as  a 
distinct  entity  is  not  necessary .^  The  case  therefore  belongs 
to  this  Part  II.,  —  Unlawful  Acts,  regardless  of  means  or 
malice. 

§  1.    Of  Master  and  Servant. 

246.    From  very  early  times  it  has  been  actionable  by  the 

common  law  of  England  for  one  to  entice  away 

another's  servants,  with  notice  of  the  employment ;  vants  away : 

thousfh  the  term '  servant'  at  first  was  used  to  desig-  extension  of 
°  .       „    ,        .       idea  of  service. 

nate  a  person  employed  m  memai  service,'*  that  is, 

one  living  with  the  master  as  a  member  of  his  household  or 

family.     But  that  was  because  there  was  then  little  if  any 

1  Ante,  pp.  17,  19.         ^  AUen  v.  Flood,  1898,  A.  C.  1,  121-123,  154. 

^  The  term  was  not  applied  to  the  master's  children,  though  they  were 
and  are  in  law  his  servants,  of  his  household.  See  Taylor  v.  Xeri,  infra. 
The  secondary  meaning  of  '  menial  *  became  the  common  meaning  long 
ago. 

In  early  times  of  English  vassalage  a  man's  menial  servants  were  so 
much  part  of  his  own  station  in  life,  or  status,  that  merely  to  entice  them 
away  appears  to  have  been  actionable.  Comp.  L.  C.  Torts,  227,  290,  291. 
Secus  of  his  children,  until  still  earlier  times  of  serfdom.  Taylor  v.  Neri, 
infra.    But  to  seduce  his  daughter  was  trespass  until  the  nineteenth  century. 


128  LAW  OF  TORTS.  [Pakt  IL 

service  that  was  not  of  that  kind.^  When  in  process  of  time 
there  came  to  be  much  service  in  which  the  servants  were  not 
members  of  the  master's  household,  the  rule  was  extended 
accordingly,  and  deemed  to  apply  to  all  cases  in  which  the 
relation  of  master  and  servant  existed;  though  not  without 
question. 2  Such  is  the  rule  at  the  present  day,  both  in 
England  and  in  America. 

§  2.   What  must  be  Proved. 

247.  The  plaintiff  accordingly  has  to  prove  the  enticement 
from  service,  with  notice,  to  his  damage.  Such  evidence 
will  entitle  him  to  recover.  For  example:  The  defendant 
entices  away  from  the  plaintiff's  employment  the  plaintiff's 
journeymen  shoemakers,  working  by  the  piece  and  not 
'  menial '  servants,  with  notice  of  their  relation  to  the  plaintiff, 
to  the  plaintiff's  damage.  The  defendant  is  liable.^  Again: 
The  defendant  entices  away  from  the  plaintiff's  employment, 
with  notice  thereof,  the  plaintiff's  piano  workmen,  working 
by  the  piece  and  not  being  menial  servants,  to  the  plaintiff's 
damage.  The  defendant  is  liable.*  Again:  The  defendant 
entices  away  the  plaintiffs'  workmen,  engaged  generally  and 

1  The  Statute  of  Laborers  of  25  Edw.  3,  stat.  1,  maybe  noticed.  The 
statute  grew  out  of  the  dearth  of  laborers  caused  by  the  plague,  and  ac- 
cordingly related  to  ploughmen  and  others  doing  menial  service.  This 
has  sometimes  been  supposed  to  be  the  origin  of  the  master's  right  against 
third  persons,  but  that  appears  to  be  a  mistake.  The  statute  was  re- 
pealed, but  the  master's  right  of  action  has  continued,  without  legislation, 
to  this  day.  The  Statute  of  Laborers  simply  added  to  the  law  certain 
provisions  not  of  the  common  law,  as  in  regard  to  harboring  servants. 
See  Lumley  v.  Gye,  2  El.  &  B.  216  ;  L.  C.  Torts,  306,  VVightman,  J. 

2  See  Ashley  v.  Harrison,  1  Peake,  194 ;  s.  c.  1  Esp.  48 ;  Taylor  v. 
Neri,  1  Esp.  386.  In  the  second  case,  an  action  for  assaulting  an  opera 
singer  whereby  the  plaintiff  lost  his  service.  Eyre,  C.  J.,  said  that  he  did 
not  think  the  law  extended  beyond  menial  servants,  and  pointed  out  that 
a  father  could  not  maintain  an  action  for  merely  enticing  away  of  his 
daughter  per  quod  servitiura  amisit.  But  it  is  now  well  settled  that  the 
rule  is  not  confined  to  the  case  of  menial  servants.  See  Lumley  v.  Gye, 
2  El.  &  B.  216  ;  L.  C.  Torts,  306,  Crompton,  J. 

8  Hart  V.  Aldridge,  1  Cowp.  ,"^4,  a  case  often  followed. 
4  Gunter  v.  Astor,  4  J.  B.  Moore,  12. 


Chap.  V.  §3.]     PROCURING    BREACH  OF  CONTRACT.  129 

not  by  the  piece,  or  as  jonrneymen,  or  as  menial  servants,  in 
the  manufacture  of  boots  and  shoes,  with  notice  of  the  employ- 
ment, to  the  plaintiffs'  damage.     The  defendant  is  liable.^ 

§  3.    Of  Contract  in  General. 

248.    After  great  discussion  it  was  held  in  England  in  1853 
that  the  master's  right  in  cases  like  the  foregoing  is  only  an 
example  and  not  an  anomalous  or  a  special  case;  Master's 
a  maioritv  of  the  Queen's  Bench  laying  down  the  "ght  deemed 

.  .  only  an  ex- 

rule,  as  new  only  in  the  sense  that  it  was  then  ample:  larger 
clearly  and  definitely  stated,  that  to  procure  a  ^^^^• 
man  to  break  his  contract,  with  notice  of  the  existence  of  the 
same,  is  actionable  if  the  plaintiff,  the  other  party  to  the 
contract,  suffered  harm.^  For  example:  The  plaintiff's 
declaration  alleges  that  the  plaintiff,  being  proprietor  of  a 
theatre  in  London,  made  a  contract  with  an  opera  singer,  one 
Miss  Wagner,  whereby  she  agreed  to  sing  exclusively  at  the 
plaintiff's  theatre  during  a  certain  season;  and  that  the  de- 
fendant, proprietor  of  a  rival  theatre  there,  knowdng  the 
premises,  persuaded  and  induced  Miss  Wagner  to  break  her 
contract  with  the  plaintiff,  and  to  refuse  to  sing  at  his  theatre, 
to  the  damage  of  the  plaintiff.     The  defendant  is  liable.^ 

249..    In  the  example  the  court  refused  to  consider  whether 
the  party  induced  to  break  the  contract  had  already  performance 
begun  performance  or  not.     And  the  whole  deci-  "°^  begun. 

1  Walker  v.  Cronin,  107  Mass.  555  ;  Cases,  102. 

The  allegation  of  malice,  and  with  unlawful  purpose  to  injure  the 
plaintiff  in  his  business,  has  been  omitted  from  the  foregoing  statement 
as  surplusage,  the  malice  and  the  unlawful  purpose  being  found  in  doing 
the  act  with  notice  of  the  relation.  See  ante,  p.  128.  '  It  must  now  be 
considered  clear  law  that  a  person  who  wrongfully  and  maliciously,  or, 
which  is  the  same  thing,  with  notice,  interrupts  the  relation  subsisting 
between  master  and  servant,'  etc.  Crompton,  J.,  in  Lumley  v.  Gye,  2  El. 
&  B.  216 ;  L.  C.  Torts,  306,  at  p.  311. 

2  Lumley  v.  Gye,  2  El.  &  B.  216  ;  L.  C.  Torts,  306. 

3  Lumley  v.  Gye,  supra,  Coleridge,  J.,  dissenting  in  along  and  power- 
ful opinion,  holding  that  the  action  for  procuring  breach  of  contract  of 
service  was  founded  upon  the  Statute  of  Laborers,  and  confined  therefore 
to  cases  of  the  relation  of  master  and  servant  in  the  ordinary  sense. 

9 


130  LAW   OF   TORTS.  [Part  II. 

sion  has  been  reaffirmed  in  England  ^  and  followed  or  ap- 
proved,^ but  also  strongly  denied,  in  America.^  And  it 
has  even  been  intimated  in  England  that  the  subject  is  not 
altogether  closed.* 

250.  Several  objections  have  been  raised  besides  the  one 
that  there  was  no  action  for  procuring  breach  of  contract, 
Objection:  cxccpt  by  a  master,  before  the  Statute  of  Laborers 
remoteness.  ^f  ^\^q  middle  of  the  fourteenth  century.  One 
of  these  objections  is  that  the  defendant's  act  is  too  remote 
for  accountability,  —  that  the  defendant  cannot  be  liable  for 
the  free,  voluntary  misconduct  of  another  not  acting  as  his 
agent  or  servant.  '  The  action  is  not  maintainable,  as  the 
breaking  her  contract  was  the  spontaneous  act  of  Miss  Wagner 
herself,  who  was  under  no  obligation  to  yield  to  the  persua- 
sion or  procurement  of  the  defendant. '  ^  In  other  words,  the 
damnum  was  not  the  natural  or  legal  consequence  of  the  injuria. 

251.  To  this  objection  the  answer  appears  to  be,  that  even 
if  Miss  Wagner's  act  was  not  likely  to  result  from  the  de- 
fendant's persuasion,  the  defendant  at  all  events  intended 
that  it  should  result,  and  it  did.*^  A  may  be  liable  for  suc- 
cessfully persuading  B  to  commit  a  crime  or  a  tort,  however 
improbable  it  may  be  that  B  will  yield  to  the  persuasion. ^ 

1  Boweu  V.  Hall,  6  Q.  B.  Div.  833,  Lord  Coleridge,  C.  J.,  dissenting. 
See  also  Temperton  v.  Russell,  1893,  1  Q.  B.  714,  overruled  more  or  less 
by  Allen  v.  Flood,  1898,  A.  C.  1. 

2  Walker  v.  Cronin,  107  INIass.  555;  Cases,  102;  Angle  i\  Chicago  Ry., 
151  U.  S.  1,  13,  14.  See  Rice  v.  Albee,  164  Mass.  88;  May  r.  Wood, 
172  Mass.  11. 

3  Boyson  v.  Thorn,  98  Calif.  578 ;  Rice  v.  Albee,  164  Mass.  88 ;  May 
I'.  Wood,  172  Mass.  11.  The  last  case  is  the  converse  of  the  cases  of  the 
master's  right,  being  a  suit  by  a  servant  for  procuring  the  master  to  break 
his  contract  with  her  and  discharge  her.  A  majority  of  the  court  held 
that  there  was  no  such  converse  right  of  action,  unless  wrongful  means 
were  used. 

*  See  Allen  v.  Flood,  at  pp.  123,  153,  168. 

s  Wightman,  J.,  putting  the  defendant's  contention  in  Lumley  v.  Gye, 
ut  supra. 

6  Bowen  v.  Hall,  6  Q.  B.  Div.  333,  338,  Lord  Esher. 

"^  '  He  who  procures  the  wrong  is  a  joint  wrongdoer,  and  may  be  sued, 
either  alone  or  jointly  with  the  agent,  in  the  appropriate  action  for  the 
wrong  complained  of.'     Erie,  J.,  in  Lumley  v.  Gye,  supra. 


Chap.  V.  §  3  ]     PROCURING  BREACH  OF   CONTRACT.  131 

Intention  to  have  an  act  done,  and  procuring  it  to  be  done 
though  by  persuading  another  to  do  it,  shoukl  bring  a  man 
near  enough  to  the  act  to  make  him  accountable  for  it;  suc- 
cessful endeavor  ought  to  be  enough.  The  fact  that  the 
immediate  actor  is  a  free  agent,  under  no  obligation  to  be 
persuaded,  should  not  affect  the  case.  It  is  settled  law  that 
the  fact  that  intervening  instruments  are  human  beings, 
acting  of  their  own  will,  does  not  necessarily  cut  off  liability 
from  one  back  of  them.^  But  more  directly  to  the  point,  a 
husband  can  maintain  an  action  against  one  who  induces  his 
wife,  without  legal  cause,  to  leave  him,^  and  conversely  a 
wife  can  maintain  an  action  against  one  who  similarly  per- 
suades her  husband  to  abandon  her ;  ^  and  yet  the  leaving  or 
abandonment  is  the  '  spontaneous  '  act  of  the  wife  or  hus- 
band, in  the  same  sense  in  which  Miss  Wagner's  act  was 
spontaneous. 

252.  The  other  objection  is,  that  the  only  duty  bearing 
upon  the  case  is  the  duty  created  by  the  contract.  It  makes 
no  difference,  according  to  this  objection,  that  obiection- 
the  defendant  was  near  enough  to  cause  and  did  duty  one  of 
cause  the  breach  of  contract  since  he  violated  no  ^°^  ^^'^  °^  ^' 
duty  to  the  plaintiff ;  only  the  party  who  broke  the  contract 
violated  such  a  duty.  This  objection  is  more  serious.  It 
does  not  go  the  length  of  denying  that  the  defendant  owed 
am/  duty  to  the  plaintiff.  It  does  not  deny,  and  no  one 
would  deny,  that  the  defendant  owes  to  the  plaintiff'  in  such 
a  case  the  duty  to  use  no  wrongful  means  to  procure  the 
breach ;  *  it  only  denies  that  inducing  one,  by  persuasion 
merely,  to  break  one's  contract  is  wrongful. 

253.  If  this  be  not  presumptively  wrongful  by  clear  doc- 
trine of  the  common  law,   there  will    still  be  the  appeal  to 

1  Thomas  v.  Winchester,  6  N.  Y.  397 ;  Cases,  567.  See  ante,  pp.  48, 
49;  post,  p.  398. 

'■^  Winsmore  v.  Greenbank,  Willes,  577;  Lumley  v.  Gye,  per  Wight- 
man,  J. 

8  See  the  chapter  on  Seduction,  post. 

*  Note  that  the  objection  in  no  way  questions  the  idea  that  the  crea- 
tion of  a  right  in  personam  may  incidentally  or  necessarily  generate  a 
right  in  rem. 


132  LAW  OF  TORTS.  [Part  IL 

public  policy;  and  on  that  point  the  leaning  of  opinion 
appears  to  be  in  favor  of  treating  persuasion  to  break  a  con- 
tract as  too  dangerous  to  the  public  welfare  to  be  j)erinitted. 
The  well-established  case  of  the  right  of  action  of  a  husband 
or  wife  against  a  third  person  for  persuading  the  other  party 
to  the  marriage  contract  to  break  the  same  by  abandoning  the 
other,  if  a  stronger  case,  is  still  not  without  its  force  as  a 
precedent.  And  the  same  may  be  said  of  the  case  of  per- 
suading another  to  commit  a  crime  or  a  tort,  for  the  person 
persuaded  may  have  owed  a  duty  of  contract,  as  of  faithful- 
ness in  a  foreign  agency,  of  which  the  offence  is  a  breach  pur- 
posely caused  by  the  defendant.  But  what  difference  can  it 
make  whether  the  duty  violated  by  the  person  persuaded  is 
one  of  contract  or  of  another  kind  ?  Why  should  there  not 
be  a  legal  duty  not  to  persuade  a  man  to  break  his  contract 
as  well  as  not  to  persuade  a  man  to  violate  his  duty  to  the 
state  or  any  other  duty  paramount?  Has  the  supposed  dis- 
tinction anything  more  to  rest  upon  than  the  confused  notion 
that  a  right  in  personam  is  inconsistent  with  a  right  in  rem  ?  ^ 

254.  Assuming  that  the  right  in  question  exists,  will  it 
aft'ect  the  case  that  the  contract  was  not  enforceable,  as  for 
statute  of  instance  because  of  the  Statute  of  Frauds?  Has 
Frauds.  ^^q  plaintiff  still  a  legal  right  towards  the  defend- 

ant ?  In  cases  in  which  wrongful  means  have  been  employed, 
as  where  the  procuring  was  by  misrepresentation, ^  or  by 
seduction,  or  by  enticing  away  servants,^  the  courts  have 
held  that  it  makes  no  difference  that  the  contract  was  not 

1  That  there  is  no  such  inconsistency  in  reality  is  sho^vn  by  the  fact 
that  to  procure  breach  of  contract  by  means  admitted  to  be  of  a  wrong- 
ful nature,  such  as  misrepresentation,  is  unlawful  (if  actual  damage  re- 
sult). It  is  everywhere  agreed  that  a  right  in  personam  may  generate  a 
right  in  rem.     See  ante,  p.  7. 

2  Benton  v.  Pratt,  2  Wend.  385 ;  Rice  v.  Manley,  66  N.  Y.  82. 

2  Evans  v.  Walton,  L.  R.  2  C.  P.  15  (distinguishing  Cox  v.  Muncey, 
6  C.  B.  N.  s.  375,  and  Sykes  v.  Dixon,  9  Ad.  &  E.  693);  Harper  k 
Suffkin,  7  Barn.  &  C.  387  ;  ^Fitzh.  N.  B.  91  G.  note  by  Lord  Holt ;  Sutton 
V.  Huffman,  3  Yroora,  58 ;  Lipe  v.  Eisenlard,  32  N.  Y.  229  ;  Bigelow's  L.  C. 
Torts, -292-304. 


Chap.  V.  §4.]     PROCURING  BREACH  OF  CONTRACT.  133 

binding.  Such  cases  have  been  put  upon  the  ground  that  the 
plaintiff  has  a  right  to  any  service  which  another  is  willing 
to  give,  whether  for  pay  or  gratuitously ;  which  accords  with 
what  we  have  already  seen  touching  the  nature  of  legal 
right.  ^ 

§  4.    Of  Daalage. 

255.  It  is  not  enough  that  there  has  been  a  breach  of  con- 
tract, though  that  would  of  course  be  enough  for  an  action 

against  the  party  who  had  broken  the  same.     For  ^ 
°  -c^       «/  Engagement 

the  purpose  of  an  action  against  a  stranger  to  the  for  fixed 
contract  for  procuring  the  breach,  actual  damage  P^'^^*"^- 
must  be  proved.  It  is  not  necessarj^  however  that  there 
should  have  been  an  engagement  for  a  fixed  period  of  time, 
such  as  '  for  the  season ; '  the  action  lies  as  well  where  no 
time  is  fixed,  or  where  the  engagement  is  from  day  to  day,  or 
by  the  piece. ^  Indeed  it  has  lately  been  held  that  specific 
damage  need  not  be  shown  in  cases  in  which  it  appears  that 
some  damage,  however  undefined,  must  have  been  sustained ;  ^ 
which  however  is  in  perfect  accord  with  the  legal  idea  of 
special  damage.* 

1  Ante,  p.  6. 

2  Gunter  v.  Astor,  4  J.  B.  Moore,  12;  Hart  v.  Aldridge,  1  Cowp.  55; 
Lumley  v.  Gye,  2  El.  &  B.  216;  s.  c.  L.  C.  Jorts,  306,  316;  Walker  v. 
Cronin,  107  Mass.  555;  Cases,  102,  107. 

»  Exchange  Telegraph  Co.  v.  Gregory,  1896,  1  Q.  B.  147,  C.  A. 
*  Ratcliffe  v.  Evans,  1892,  2  Q.  B.  524,  528,  Bowen,  L.  J. 


CHAPTER  VI. 

SEDUCTION. 

Statement  of  the  duty.  A  owes  to  B  the  duty  not  to  seduce 
B's  female  child  and  servant,^  capable  of  service,  or  B's 
female  ward  and  servant,  capable  of  service,  towards  whom 
B  stands  in  loco  parentis,  or  to  entice  away  or  alienate  the 
affections  of  B's  wife  or  husband. 

The  term  '  seduction, '  in  its  broad  legal  sense,  includes  the 
enticing  away  of  servants  and  enticing  away  or  alienating  the 
Various  mean-  '^^ections  of  a  husband  or  a  wife ;  hence  the  use 
ings  of  term  of  the  single  word  to  cover  all  that  is  contained 
'seduction.'  -^^  ^^^q  '  Statement  of  the  duty.'  The  subject  of 
enticing  servants  away  has  been  disposed  of  in  the  two  next 
preceding  chapters;  what  is  left  for  the  present  chapter  is 
seduction  in  the  more  common  sense,^  including  alienation  of 
affection  in  the  marital  relation. 

§  1.    Of  Enticing  Away  Children. 

256.  It  is  doubtful  whether  any  action  lies  by  a  parent  for 
the  mere  enticing  away  of  his  minor  daughter  (or  son),  or  for 
Parent's  ri  ht  ^^^^'^^ring  the  child  after  notice  that  the  depart- 
of  action:  loss  ure  is  without  the  parent's  consent.-^  There  must 
of  service.  |^q  either  a  real  loss  of  service,  or  a  loss  of  service 
by  way  of  seduction ;  in  the  first  case  the  ordinary  relation  of 
master  and  servant,  already  disposed  of,  exists  between  the 

1  This  was  trespass  formerly.     See  Chitty,  Pleading,  ii.  6i3,  note. 

2  See  State  v.  Bierce,  27  Conn,  319 ;  Carlisle  v.  State,  73  Miss.  387 ; 
Bradshaw  v.  Jones,  103  Tenn.  331,  defining  the  term. 

3  Taylor  v.  Neri,  1  Esp.  386  (referred  to  by  Crompton,  J,,  in  Lumley 
V.  Gye,  2  El.  &  B.  216,  and  L.  C.  Torts,  306),  where  Eyre,  C.  J.,  said  that 
if  a  daughter  left  her  father's  service  no  action  for  loss  of  service  could 
be  maintained.     His  lordship  apparently  meant,  against  one  who  enticed 


Chap.  A^  §  2.]  SEDUCTION.  135 

parent  and  child ;  the  second  case  is  the  subject  now  reached 
for  consideration. 

§  2.    Of  Seductjok  stricto  sensu  :  Parent  and  Child  : 
What  must  be  Proved,  etc. 

257.  A   parent's    right   of    action    against   one    who    has 

seduced  or  enticed  away  his  child  is  at  common  law  ^  the  right 

of  action  of  a  master;  that  is,  it  turns  upon  the 

.,  £  J^^  ix-  £  i  1  J.     Master  and 

existence  oi  the  relation  oi  master  and  servant,   servant  as 

not  merely  upon  parental  authority  or  kinship.^  ground  of  the 
The  plaintiff  need  not  prove  notice  of  the  rela- 
tion of  master  and  servant  between  himself  and  the  child, ^ 
but  must  prove  the  performance  of  some  service,  however 
slight,  by  the  child  accordingly,  and  the  seduction.  The 
right  of  action  lasts  as  long  as  that  relation  lasts ;  it  does  not 
terminate  necessarily  when  the  child  becomes  of  age.* 

258.  In  England  the  parent's  right  of  action  terminates 
whenever  the  child  leaves  the  parent's  house  with 

AI1SGIIC6  of 

intention  not  to  return.^     That  rule  does  not  ob-  child  from 

tain  in  this  country.^     The  father's  right  of  ac-  Parent :  will 

1  1  T  1  1  -n      0   ^1       of  child, 

tion  here  does  not  depend  upon  the  will  01  tlie 

child;  notwithstanding  the  child's  absence  from  her  father's 

the  daughter  away;  but  even  if  he  meant  against  the  daughter  the  result 
would  be  the  same,  for  if  the  daughter  was  not  liable  the  enticing  away 
would  not  be  wrongful  unless  the  daughter  was  giving  real  service  gra- 
tuitously. Qu.  as  to  civil  liability  for  kidnapping  the  plaintiff's  young 
child  ? 

^  The  rule  has  in  effect  been  changed  by  statute  in  Kansas.  Anthony 
r.  Norton,  60  Kans.  341,  reviewing  the  cases.  So  perhaps  elsewhere  by 
'  reformed  procedure.' 

2  Middleton  v.  Nichols,  62  N.  J.  636,  637. 

£  Chitty,  Pleading,  ii.  642,  note.  See  Allen  v.  Flood,  1898,  A.  C.  1, 
154.  The  defendant  may  be  bound  to  know  whether  she  was  of  age  or 
not.  If  not  of  age,  she  would  presumptively  be  in  the  father's  service, 
it  seems.  Seduction  of  a  young  child  should  be  a  presumptive  wrong  to 
the  father. 

*  Infra,  p.  137. 

5  Dean  v.  Peel,  5  East,  45.  See  Griffiths  v.  Teetgen,  15  C.  B.  344 ; 
Manley  v.  Field,  7  C.  B.  n.  s.  96 ;  Hedges  v.  Tagg,  L.  R.  7  Ex.  283. 

6  Middleton  v.  Nichols,  supra ;  Milliken  v.  Long,  188  Penn.  St.  411. 


136  LAW  OF  TORTS.  [Part  11. 

house  at  the  time  of  the  seduction,  though  she  intends  not  to 
return,  the  father's  right  of  action  is  not  affected.  This  is 
true  though  she  was  at  tlie  time  in  the  service  of  anotiier  with 
her  fatlier's  consent.  For  example :  The  defendant  seduces 
the  plaintiff's  daughter  under  the  following  circumstances: 
The  daughter,  at  the  age  of  nineteen,  goes,  with  the  consent 
of  her  father  the  plaintiff,  to  live  with  a  relative,  for  whom 
she  works  when  she  pleases,  receiving  pay  for  her  labor. 
While  there,  and  still  under  age,  she  is  seduced  and  got  with 
child  by  the  defendant,  and  returns  to  her  father  and  is  cared 
for.  She  had  no  intention,  but  for  the  seduction,  to  return. 
The  defendant  is  liable.^ 

259.  That  however  is  the  extent  of  the  American  rule. 
If  the  power  of  the  parent  over  the  child  was  gone  at  the 
time  of  the  seduction,  whether  by  his  own  act  or  by  act  of  the 
law,  the  seducer  has  violated  no  legal  duty  to  him;^  though 
there  has  been  some  conflict  of  authority  in  regard  to  the 
application  of  this  doctrine  to  the  case  of  a  return  of  the 
daughter  after  the  seduction,  a  point  to  be  referred  to  later. 

260.  It  is  considered  liowever  that,  if  the  parent's  control 
over   his  child  was  divested  by  fraud,  he  may  treat  it,   on 

discovering  the  fraud,  as  never  having  been  aban- 
parent  taken  doned,  and  maintain  an  action  against  the  seducer, 
away  by  YoT  example :  The  defendant  hires  the  plaintiff's 

daughter  from  his  service  with  intent  to  seduce 
her,  and  by  this  means  obtains  j)ossession  of  her  person,  and 
seduces  her.  The  plaintiff  is  entitled  to  recover  as  if  the 
daughter  had  been  seduced  while  in  his  own  service.^ 

261.  There  must  have  been  ability  to  render  service  at  the 
time  of  the  seduction ;  ^  though  whether  actual  services  were 
Ability  to  being  rendered  or  not,  or  what  the  extent  or 
serve.  value  of  the  services,  has  nothing  to  do  with  the 

1  Martin  v.  Payne,  9  Johns.  387 ;  s.  c.  L.  C.  Torts,  28G. 

2  Middleton  v.  Nichols,  62  N.  J.  6-36,  6:38. 

3  Speight  V.  Oliviera,  2  Stark.  493 ;  Daiu  v.  Wycoff,  7  N.  Y.  191,  194. 
*  Hall  I'.  Hollander,  4  B.  &  C.  660. 


Chap.  VI.  §  2.]  SEDUCTION.  137 

right  of  action,  ^  and  in  many  cases  may  liave  little  if  anything 
to  do  with  the  amount  recoverable.  Loss  of  service  is  indeed 
of  the  gist  of  the  action,  by  the  common  law;  but  when  abil- 
ity to  perform  service  has  been  shown,  damages  may  be  given 
not  merely  for  any  actual  loss  of  service  but  also  for  the  dis- 
grace inflicted  upon  the  plaintiff  and  his  family,  ^  the  amount 
which  may  be  given  varying  more  or  less  with  the  station  in 
life  of  the  parties  and  being  subject  to  the  reasonable  judg- 
ment of  the  jury.^ 

262.  The  father's  right  of  action  continues,  as  has  already 
been  intimated,  after  the  daughter  has  come  of  age,  if  the 
relation  of  master  and  servant  is  still  in  opera-  Daughter  of 
tion  between  them.  If  the  parent  continue  to  ex-  age. 
ercise  authority  over  the  daughter  after  her  majority,  and 
she  continue  to  submit,  she  is  still  his  servant,  though  not 
under  an  actual  engagement  to  serve  him;  and  seduction 
under  such  circumstances  is  a  breach  of  legal  duty  to  the 
parent.  For  example :  The  defendant  seduces  the  plaintiff's 
daughter,  aged  twenty-two  years.  Prior  to  and  at  tlie  time 
of  the  seduction,  the  daughter  has  been  living  part  of  the  time 
with  her  brother,  who  resides  about  a  mile  from  her  father's 
house,  and  part  of  the  time  with  her  father.  She  has  not  re- 
ceived wages  from  her  brother,  and  when  at  home  has  worked 
for  her  mother,  the  plaintiff  buying  her  clothing.  The  daugh- 
ter is  the  plaintiff's  servant,  and  the  defendant  is  liable.* 

263.  It  has  been  held  in  England  that  the  seduction  should 
be  followed  by  pregnancy  or  disease  to  entitle  the  pregnancy  or 
plaintiff  to  recover. ^     The  American  rule  is,  that  disease. 

1  See  Grinnell  v.  Wells,  7  Man.  &  G.  1044,  note  to  the  case. 

2  Terry  v.  Hutchinson,  L.  R.  3  Q.  B.  599  ;  Bartley  v.  Richtniyer, 
4  Comst.  38;  L.  C.  Torts,  294. 

3  The  only  limit  upon  their  action  as  to  the  amount,  as  in  many  other 
cases,  is  that  it  must  not  be  excessive,  under  all  the  facts  of  the  case 
taken  together. 

*  Sutton  V.  Huffman,  3  Vroom,  58;  Rist  i'.  Faux,  4  Best  &  S.  409 
(Ex.  Ch.)  ;  Evans  v.  Walton,  L.  R.  2  C.  P.  615.     See  ante,  p.  135. 

5  Eager  v.  Grimwood,  1  Ex,  01.  But  see  Evans  v.  Waltou,  L.  R. 
2  C.  P.  615,  617. 


138 


LAW    OF   TORTS. 


[Part  II. 


where  the  proper  effect  of  the  connection  is  an  incapacity  to 
labor,  by  reason  of  which  the  plaintiff  loses  the  services  of 
his  daughter  and  servant,  the  loss  of  such  services  entitles  the 
plaintiff  to  recover  against  the  seducer.  The  same  principle 
which  oives  a  master  an  action  where  the  connection  causes 
pregnancy  applies  to  the  case  of  sexual  disease,  and,  indeed, 
to  all  cases  where  the  proper  consequence  of  the  act  of  the 
defendant  is  a  loss  of  health  resulting  in  an  incapacity  for 
such  service  as  could  have  been  rendered  before.  For  exam- 
ple :  The  defendant  seduces  the  plaintiff's  minor  daughter,  by 
reason  of  which,  without  becoming  pregnant  (or  being  affected 
with  sexual  disease),  she  suffers  general  injury  in  health,  so 
that  it  becomes  necessary  for  the  plaintiff  to  send  her  away 
for  her  recovery;  whereby  he  incurs  ex^jense  and  loses  his 
daucfhter's  services.     The  defendant  is  liable.^ 

264.  If   however  the  loss  of   health  be  caused  by  mental 

suffering  not  the  necessary  effect  of  the  seduction,  especially 

.  ^    ,.,.  if  produced  by  subsequent  causes,  the  loss  of  ser- 
loss  of  health      .  ^    .  ■,         nf  ■  i      •  f  ^  c 

due  to  mental  Vice  IS  not  the  etiect,  m  contemplation  oi  law,  oi 

suffering.  ^^^^  defendant's  act;  and  hence  the  action  can- 
not be  maintained.  For  example:  The  defendant  seduces 
the  plaintiff's  minor  daughter,  and  subsequently  abandons 
her,  in  consequence  of  which  she  suifers  such  distress  of  mind 
as  to  bring  illness  upon  her,  and  incapacitate  her  for  perform- 
ing services  for  the  plaintiff ;  no  pregnancy  or  disease  result- 
ing by  direct  consequence  of  the  seduction.  The  defendant 
is  not  liable  to  the  plaintiff. ^ 

265.  If  a  loss  of  service  follow  as  the  proper  effect  of  the 
defendant's  act,  it  is  held  to  be  immaterial,  so  far,  that  he 
Seductive  arts  accomplished  his  purpose  without  resorting  to 
not  necessary,  seductive  arts.  The  willingness  of  the  daughter 
cannot  affect  the  parent's  right  of  action  for  loss  of  service ;  ^ 
though  the   ready  consent  of   the   young   woman   might  be 


^  Abrahams  v.  Kidney,  104  Mass.  222 ;  Boyle  v.  Brandon,  13  M.  &  W. 
738. 

^  Boyle  V.  Brandon,  supra ;  Abrahams  v.  Kidnej-,  supra.    See  ante,  p.  28. 

8  Damon  v.  Moore,  5  Lans.  454.  See  Broadliurst  v.  Jones,  103  Tenn. 
331. 


\, 


Chap.  VI.  §  2.]  SEDUCTION.  139 

ground  for  mitigation  of  other  damages/  especially  if  she  was 
notoriously  a  loose  character. 

266.  What  has  been  said  in  the  preceding  paragraphs  con- 
cerning the  parent's  right  of  action  for  loss  of  service  must 
be  understood  of  the  father's  claim  to  damages.  claim  of 
During  his  guardianship  of  the  daughter,  the  right  mother. 
of  action  belongs  to  him  alone.  Should  he  be  removed  by 
the  law  from  his  natural  position  of  authority,  or  should  he 
die  during  the  child's  minority,  the  question  arises  of  the 
mother's  right  of  action  against  the  seducer.  It  is  clear  if 
the  guardianship  of  the  child  has  been  given  to  her,  she  has 
a  right  of  action  for  the  loss  of  service;  though  it  may  be 
doubted  if  at  the  present  time  the  mere  relation  of  guardian, 
apart  from  that  of  parent,  would,  in  all  cases,  afford  a  right 
of  action  for  the  child's  seduction,  a  point  to  be  further  ad- 
verted to  in  the  next  section. 

267-  A  difficulty  arises  where  the  mother,  upon  the  death 
of  the  father,  or  his  removal  from  the  guardianship,  simply 
continues  to  exercise  authority  over  her  daughter,  and  to 
receive  her  (voluntary)  obedience,  without  having  received  an 
appointment  as  guardian.  The  mother's  right  of  action  has 
sometimes  been  supposed  to  turn  upon  the  question  of  her 
right  to  require  the  child's  support  in  such  a  case.  It  is  now 
well  settled  in  America  however  that  so  Iouct  as  the  daughter 
continues  to  give  obedience  and  service  to  her  mother,  the 
latter  has  a  right  of  action  for  a  wrongful  interruption  of  the 
daughter's  position  of  servant.  For  example:  The  defendant 
seduces  the  minor  daughter  of  the  plaintiff,  a  widow.  The 
daughter,  having  previously  been  in  the  service  of  the  defend- 
ant, and  then  in  the  service  of  D,  returns  from  the  latter 
person  to  her  mother  to  aid  her  during  sickness  in  the  family. 
While  thus  with  her  mother  for  a  day  or  two,  she  is  got  with 

^  Ilogan  V.  Cregan,  G  Rob.  138  (N.  Y.),  criticised  in  Damon  v.  Moore, 
supra.  Compare  Winter  v.  Henn,  4  Car.  &  P.  404,  and  Forster  v.  Forster, 
33  L.  J.  Prob.  &  M.  150,  n.,  as  to  criminal  conversation. 


140  LAW   OF   TORTS.  [Part  II. 

child  by  the  defendant.  The  defendant  has  violated  a  legal 
duty  to  the  plaintiff,  and  is  liable  in  damages.^ 

268.  The  authority  from  which  this  example  has  been 
given  went  one  step  further,  and  decided  that  the  mother's 
right  of  action  was  not  affected  by  the  fact  that  the  daughter, 
when  seduced,  waB  actually  in  the  service  of  another,  so  long 
as  she  indicated  a  willingness  to  consider  her  mother  as  still 
entitled  to  her  assistance. 

269.  There  is  conflict  of  American  authority  concerning 
the  mother's  right  of  action  in  such  cases  where  the  daughter, 
seduced  while  out  at  service,  returns  to  her  mother,  and  is 
supported  and  cared  for  during  her  sickness.  The  doubt  is 
in  regard  to  the  mother's  relation  to  her  daughter  apart  from 
any  interference  of  the  law  in  giving  custody  to  her.  Unless 
the  mother  is  considered  to  have  the  legal  right  to  require  her 
daughter's  service,  it  is  difficult  to  see  how  she  could  be  enti- 
tled to  sue  for  the  seduction  in  a  case  of  that  kind.^ 

270.  The  child  is  not  entitled,  apart  from  statute,  to  sue  for 
her  own  seduction,  since  she  has  consented  to  the  act ;  though 
Action  by  if  the  seduction  was  effected  under  a  promise  of 
child  seduced,  marriage,  which  is  afterwards  broken,  she  may  re- 
cover damages  for  the  seduction.  But  the  action  is  then  for 
the  breach  of  promise  of  marriage,  and  not  for  the  seduction. 
For  like  reason  the  parent  is  barred  if  he  consented  or  virtu- 

1  Gray  v.  Durland,  51  N.  Y.  424.  lu  Abraliams  v.  Kidney,  104  Mass. 
222,  the  mother  sued  and  recovered. 

2  The  mother's  right  of  action  in  such  cases  is  denied  in  South  v. 
Denniston,  2  Watts,  474  ;  Roberts  v.  Connelly,  14  Ala.  235.  To  the  same 
general  effect,  Freto  v.   Brown,  4  Mass.  675 ;  "Worcester  v.  Marchant, 

14  Pick.  510.     It  is  supported  in  Sargent  v. ,  5  Cowen,  106.     It  is 

obvious  that  the  rules  of  law  as  to  cases  like  those  stated  must  remain  in 
uncertainty  and  conflict  until  the  nature  of  the  mother's  authority  is 
definitely  settled.  It  is  still  more  doubtful  whether  the  mother  of  a 
daughter  not  born  in  lawful  wedlock  could  maintain  an  action  in  a  case 
like  that  of  the  text.  The  mother  would  not  be  even  guardian  for  nur- 
ture in  such  a  case.  See  Regina  v.  Clarke,  7  El.  &  B.  186 ;  In  re  Ullee, 
53  L.  T.  N.  s.  711,  affirmed  54  L.  T.  n.  s.  286,  Ch.  Div.  But  statutes 
concerning  the  mother's  rights  are  coming  into  existence  in  various 
States. 


Chap.  VI.  §  3.]  SEDUCTION.  141 

ally  consented  to  the  act.  For  example :  The  defendant  is 
permitted  by  the  plaintiff  to  visit  his  daughter  as  a  suitor, 
after  notice  that  he  is  a  married  man  and  a  libertine;  the 
defendant,  on  inquiry  by  the  plaintiff'  as  to  this  matter, 
representing  that  his  wife  is  an  abandoned  character,  and 
that  he  will  soon  obtain  a  divorce  from  her,  and  then  marry 
the  plaintiff's  daughter.  The  defendant  afterwards,  while 
continuing  his  visits  at  the  plaintiff's  house,  seduces  the 
young  woman.  The  plaintiff  is  deemed  not  entitled  to  re- 
cover for  the  seduction.  1 

§  3.    Of  Guardian  and  Waed:  What  must  be 

Proved,  etc. 

271.  Not  only  the  parent,  but  any  one  standing  as  guar- 
dian, in  loco  parentis,  and  receiving,  to  his  own  benefit,  the 
services  of  a  child,  can  maintain  an  action  for  loss  Guardian's 
of  service  on  proof  that  the  defendant  has  inter-  claim, 
rupted  the  same  and  deprived  the  plaintiff  of  the  benefit  of 
the  service,  however  slight.  For  example:  The  defendant 
seduces  the  plaintiff's  niece,  the  parents  of  the  young  woman 
being  dead,  and  the  plaintiff  standing  towards  her  in  loco 
parentis.  The  defendant  is.  liable,  though  the  young  woman 
has  property  left  her  by  her  parents,  and  performs  but  slight 
service  for  the  plaintiff. ^ 

272.  The  right  of  action  in  all  such  cases,  and  in  cases 
strictly  of  guardian  and  ward,  depends,  it  seems,  upon  the 
fact  that  the  guardian  or  person  standing  in  loco 

parentis  is  receiving  the  services  (however  slight)      right  of 
to  his  own  benefit.     If  the  guardian  has  merely      action, 
the  supervision  of  the  ward  and  her  income,  while  she  lives 
elsewhere,  or  performs  service  for  herself,  the  guardian  simply 

1  Reddle  v.  Scoolt,  Peake,  240.  Compare  cases  of  criminal  conversa- 
tion, p.  146. 

2  Man  veil  v.  Thomson,  2  Car.  &  P.  303.  And,  as  in  the  case  of  an 
action  by  the  father,  damages  may  be  given  beyond  the  value  of  the 
services.  Irwin  v.  Dearman,  11  East,  23.  It  is  not  necessary,  it  seems, 
to  prove  knowledge  of  the  guardianship.  Compare  Chitty,  Pleading,  ii. 
642,  note. 


142  LAW  OF  TORTS.  [Part  IL 

receiving  lier  wages  and  acting  as  her  trustee,  it  is  improb- 
able that  he  can  sue  for  her  seduction.^ 

273.  On  the  whole,  the  cliief  difference  between  the 
ordinary  case  of  master  and  servant  on  the  one  hand,  and  that 
of  parent  and  child  and  guardian  and  ward  on  the  other, 
ap]jears  to  be  that  in  the  former  case  the  services  must  be 
substantial,  and  the  damages  would  (probably)  be  confined 
to  actual  loss  suffered ;  whilst  in  the  other  two  cases  the  ser- 
vices may  be  nominal,  such  as  might  be  presumed  where  per- 
sons so  related  live  together.  ^ 

§  4.  Of  Husband  and  Wife  :  What  must  be  Proved,  etc. 

274.  To  entice  away,  or  alienate  the  affections  of,  one's 
wife,  though  without  knowledge  of  the  existence  of  the  mar- 
Nature  of  the  ital  relation,^  is  a  civil  wrong  for  which  the  of- 
wrong.  fender  is  liable  to  the  injured  husband.*  The 
statement  indicates  what  is  to  be  proved.  The  gist  of  the 
action  however  is  not  the  loss  of  assistance,  but  the  loss  of 
the  consortium  of  the  wife,^  which  term  implies  an  exclusive 
right,  against  an  invader,  to  her  affection,  companionship, 
and  aid.^  It  is  indeed  held  to  be  unnecessary  that  there 
should  be  any  separation  or  pecuniary  injury ;  in  which  re- 
spect the  action  resembles  that  of  a  parent  for  the  seduction 

1  In  early  times  the  ward  was  the  guardian's  chattel.  Lumley  v.  Gye, 
2  El.  &  B.  216,  250,  257. 

2  For  this  paragraph  the  author  is  indebted  to  his  learned  friend,  Mr. 
R.  T.  Wright,  of  the  University  of  Cambridge,  England. 

2  Chitty,  Pleading,  ii.  642,  note. 

*  Under  changes  partly  silent,  and  partly  effected  by  recent  statutes, 
the  wife,  in  the  converse  case,  now  has  a  corresponding  right  of  action. 
Westlake  v.  Westlake,  34  Ohio  St.  621 ;  Bennett  v.  Bennett,  116  N.  Y. 
584 ;  Jaynes  t'.  Jaynes,  39  Hun,  40 ;  Warner  v.  ]\Iiller,  17  Abb.  K  C.  221  ; 
Breiman  v.  Paasch,  id.  249;  Baker  v.  Baker,  16  Abb.  N.  C.  293;  Mehrhoff 
V.  Mehrhoff,  26  Fed.  Rep.  13 ;  Foot  v.  Card,  57  Conn.  247 ;  Seaver  v. 
Adams,  19  Atl.  Rep.  776.  See  however  Lynch  v.  Knight,  9  H.  L.  Cas.  577 ; 
Van  Arnam  v.  Ayres,  67  Barb.  544.     Further,  see  Cooley,  Torts,  267,  2d  ed. 

*  The  old  form  of  allegation  in  a  case  of  master  and  servant  was  '  per 
quod  servitium  amisit ; '  in  a  case  of  husband  and  wife,  '  per  quod  cou' 
torlium  amisit.' 

6  See  Black.  Com.  iii.  139,  140  j  Bigaouette  v.  Paulet,  134  Mass.  123. 


Chap.  VI.  §  4.]  SEDUCTION.  143 

of  his  daughter.  For  example :  The  defendant,  by  false 
insinuations  against  the  plaintiff,  and  other  insidious  wiles, 
so  prejudices  and  poisons  the  mind  of  the  plaintiff's  wife 
against  him,  and  so  alienates  her  affections  from  him,  as  to 
induce  her  to  desire  and  seek  to  obtain,  without  just  cause,  a 
divorce ;  and  by  his  false  insinuations  and  wiles  succeeds  in 
persuading  the  wife  to  refuse  to  recognize  the  plaintiff  as 
her  husband.  The  defendant  is  liable  ;  though  no  actual 
absence  of  the  wife  is  caused.^ 

275.  This  example,  it  will  be  observed,  does  not  go  to  the 
extent  of  declaring  a  person  liable  for  enticing  away  or  cor- 
rupting the  affections  of  the  wife  by  reason  of      _, 
charges  against  the  husband  which  are  true  ;  but      which  are 
there  can  be  little  doubt  that  such  an  act  would      ^^'^^' 

be  a  breach  of  duty  to  the  husband.^  The  constancy  and 
affection  of  a  wife  are  all  the  more  valuable  to  him  if  his 
conduct  is  bad. 

276.  A  difference  is  deemed  to  exist  however  between  the 
act  of  a  parent  and  that  of  other  persons  with  regard  to  per- 
suading a  wife  to  leave  her  husband.  In  the  case  persuasion 
of  one  not  a  parent,  it  is  certainly  not  necessary  by  parent, 
that  bad  motives  should  have  inspired  the  act.^  It  does  not 
follow  however  that  mere  advice  to  a  married  woman  by  a 
stranger  to  leave  her  husband,  upon  representations  by  the 
wife,  would  be  unlawful;  advice  in  such  a  case  is  one  thing, 
enticement  is  another. 

277.  But  it  has  been  stated  to  be  no  breach  of  duty  to  the 
husband  for  a  parent,  upon  information  that  his  daughter  is 
treated  with  cruelty  by  her  husband  or  is  subjected  to  other 
gross  indignities  such  as  would  justify  a  separation,  to  go  so 
far  as  to  persuade  her  to  depart  from  her  husband;  though  it 
subsequently  appear  that  the  parent's  persuasion  was  based 

1  Heermance  v.  James,  47  Barb.  120. 

2  See  Bi-omley  v.  Wallace,  4  Esp.  237.  The  conduct  of  the  husband 
could  be  shown  only  in  mitigation  of  damages.     Id. 

8  See  Hutcheson  v.  Peck,  5  Johns.  196 ;  Bennett  v.  Smith,  21  Barb. 
439. 


144  LAW   OF   TORTS.  [Part  II. 

on  wrong  information.^  It  is  held  that  bad  motives  must 
have  actuated  the  parent  in  order  to  make  him  liable.^  Tliis 
seems  to  mean  that  the  parent  must  either  have  enticed  his 
daughter  to  leave  or  to  stay  away  out  of  ill-will  towards  her 
husband,  and  not  by  reason  of  any  good  ground  for  their 
separation ;  or  that  he  must  have  some  end  to  gain  of  per- 
sonal benefit  to  himself.  In  the  absence  of  facts  of  this 
character,  the  parent  is  deemed  not  liable  for  persuading 
his  daughter  to  absent  herself  from  her  husband  on  informa- 
tion justifying  (if  true)  a  divorce  or  even  a  departure  of 
her  own  motion ;  though  a  stranger  in  blood  would  be 
liable. 

278.  Any  person  who  receives  into  his  house  a  married 
woman,  who  has  abandoned  her  husband,  or  suffers  her  to 

.  stay  there,  after  receiving   notice  from  the  hus- 

band not  to  harbor  her,  is  deemed,  presumptively, 
to  violate  a  duty  which  he  owes  to  the  husband.^  But  any 
one  may,  notwithstanding  such  notice,  shelter  the  wife  out  of 
humanity,  on  reasonable  representations  by  her  that  she  has 
left  her  husband  because  of  cruel  treatment  by  him.  For 
example :  The  defendant  receives  the  plaintiff's  -wife  into  his 
house,  upon  representations  of  ill  treatment  by  her  husband ; 
and  he  continues  to  permit  her  to  remain  there  after  notice 
from  the  plaintiff  not  to  do  so.  The  defendant  is  not  guilty 
of  a  breach  of  duty  to  the  plaintiff.* 

279.  Liability  for  harboring  must  (probably)  be  limited  to 
cases  in  which  the  defendant  has  clear  notice  that  the  wife's 
act  in  coming  to  him,  or  in  staying  with  him,  is  intended  as 
a  separation  by  her  from  her  husband,  and  a  repudiation  of 
his  claims  as  such.  A  man  cannot  at  the  present  day  be 
liable  in  damages  for  allowing  a  married  w'oman  to  remain 
in  his  house  a  few  days  after  notice  not  to  do  so,  if  she  deny 

1  Bennett  v.  Smith,  21  Barb.  439,  443. 
^  Hutcheson  v.  Peck,  .supra. 

3  Winsmore  v.  Greenbank,  Willes,  577  ;  s.  c  L.  C.  Torts,  328.     See 
Addison,  Torts,  905,  4th  ed. 
*  Philp  V.  Squire,  Peake,  82. 


Chap.  VI.  §  4.]  SEDUCTION.  145 

that  she  has  abandoned  her  husband  and  claim  that  she  is 
merely  visiting,  or  that  she  is  away  from  home  for  some 
other  temporary  and  reasonable  purpose.  The  defendant's 
liability,  when  it  exists,  rests  upon  the  ground  that  he  is  a 
party  to  the  unlawful  purpose  of  depriving  the  plaintiff  of 
the  benefit  of  some  advantage  embraced  under  the  designa- 
tion of  the  consortium  of  his  wife.^  If  the  wife  were  dis- 
posed to  stay  an  unreasonable  length  of  time  after  notice 
from  the  husband,  that  fact  would  perhaps  be  sufficient  to 
cause  him  to  suspect  her  true  purpose,  and  to  render  him 
liable  in  case  he  continued  to  permit  her  to  remain. 

280.  It  is  settled  law  that  the  mere  fact  of  receiving 
another's  wife  is  not  unlawful,  even  though  no  explanation 
whatever  be  offered.^  There  must  be  an  enticing  or  harbor- 
ing with  reference  to  a  wrongful  separation.  It  is  not 
enough  even  that  the  defendant  take  the  plaintiff's  wife  to 
the  defendant's  house,  upon  request  by  her,  unless  he  has 
notice  that  slie  is  abandoning  her  husband ;  though  he  has 
been  required  by  the  plaintiff  not  to  harbor  her.  For  ex- 
ample :  The  defendant  and  the  plaintiff  are  farmers  and 
neighbors,  residing  about  two  miles  apart.  Their  wives  are 
relatives,,  and  the  plaintift^'s  wife  often  visits  the  defendant's  ; 
the  defendant  takinij  her  to  his  house  in  his  waopon.  The 
plaintiff's  wife  on  one  occasion  being  so  at  the  defendant's 
house,  the  plaintiff  gives  the  defendant  written  notice  not 
to  harbor  her,  but  to  return  her  to  his  residence  from  which 
he  (the  defendant)  has  taken  her.  The  defendant  having 
stopped  with  the  wife  near  her  husband's  house,  she  goes  to 
enter  it,  but  finds  the  door  locked,  and  returns  to  the  defend- 
ant, requesting  him  to  take  her  to  his  house.  The  defendant 
shows  her  the  notice,  and  advises  her  not  to  go,  but  she 
makes  light  of  the  matter,  and  is  taken  to  the  defendant's 
house.  The  next  day  the  defendant  carries  her  home  ;  and 
the  plaintiff  brings  suit  for  the  harboring.     The  action  is  not 

1  Winsmore  v.  Greeiibauk,  Willes,  577 ;  Ilutcheson  v.  Peck,  5  Johns. 
196  ;  Scliuneiuan  v.  Palmer,  4  Barb.  225. 

2  Barne.s  v.  Allen,  1  Keyes,  390;  Schuneman  v.  Palmer,  supra.  See 
also  Winsmore  v.  Greenbank,  supra. 

10 


146  LAW   OF   TORTS.  [Part  II. 

maintainable ;  the  defendant  not  having  attempted  to  influ- 
ence the  wife  to  leave  her  husband.^ 

281.  So  much  for  enticing  away  a  man's  wife.  The  com- 
mon law  gives  a  right  of  action  also  for  '  criminal  conversa- 

„  .   .    ,  tion  '  with  one's  wife  ;  ^  and  upon  the  same  ground 

Criminal  ..  ^-"^  ° 

intercourse :  as  tliat  for  enticing  the  wile  away  from  her  hus- 
consortium.  ]j.^j^^\^  to  wit,  the  loss  of  consortium.^  It  arises 
accordingly  without  regard  to  the  infliction  of  pecuniary 
damage.* 

282.  It  follows  that  upon  separation,  by  articles  of  agree- 
ment, the  husband,  having  voluntarily  parted  with  his  wife's 
consortium,  cannot  maintain  an  action  for  criminal  conversa- 
tion with  liis  wife.^  But  if  the  separation  was  without  any 
relinquishment  by  the  husband  of  his  right  to  the  society 
of  his  wife,  the  action  is  maintainable.  For  example :  The 
defendant,  having  entered  into  a  contract  for  the  supjDort 
of  the  plaintiff's  wife  at  his  (the  defendant's)  house,  the 
wife  goes  there  under  the  agreement,  and  the  defendant 
seduces  her.  The  act  is  a  breach  of  duty  to  the  plaintiff, 
for  which  the  defendant  is  liable.^ 

283.  The  mere  fact  of  the  husband's  infidelity  to  his  wife 
does  not  change  the  nature  of  the  defendant's  act  in  seducing 
Husband's  and  debauching  her ;  though  it  may  possibly,  in 
infidelity.  contemplation  of  law,  affect  its  enormity.  For 
example :  The  defendant  seduces  and  has  criminal  inter- 
course with  the  plaintiff's  wife.  Proof  is  offered  by  the 
defendant  that  the  plaintiff  had  shown  the  greatest  indiffer- 
ence and  want  of  affection  towards  his  wife ;  that  while  she 
lay  dangerously  ill  at  Y,    the    plaintiff    (a   surgeon  in   the 

1  Scliuneman  v.  Palmer,  4  Barb.  225. 

2  Weedou  v.  Timbrell,  5  T.  R.  3-57  ;  Harvey  v.  Watson,  7  Man.  &  G. 
614;  Bigaouette  v.  Paulet,  134  Mass.  123. 

3  Weedon  v.  Timbrell,  5  T.  R.  357. 

*  Wilton  V.  Webster,  7  Car.  &  P.  198. 

5  Harvey  v.  Watson,  7  Man.  &  G.  644. 

^  See  Chambers  v.  Caullield,  6  East,  244.  Weedon  v.  Timbrell  has 
been  limited  to  this  extent.  See  further  Barbee  v.  Armstead,  10  Ired. 
530. 


Chap.  VI.  §  4.]  SEDUCTION.  147 

navy),  though  his  vessel  was  at  Y,  and  he  landed  almost 
daily,  was  often  at  the  door  of  the  house  where  his  wife  lay 
sick,  without  visiting  her,  or  showing  any  anxiety  or  concern 
for  her ;  and  at  the  same  time  that  he  had  been  guilty  of 
adultery  and  had  contracted  a  venereal  disease.  This  is  no 
defence  to  the  action ;  ^  though  it  might  be  considered  in 
mitigation  of  damages.'-^ 

284.  If  however  the  husband  was  accessory  to  his  own 
dishonor,  the  case  is  different ;  he  could  not  complain  of  an 
injury  to  which  he  had  consented.^     For  example : 

The  plaintiff  allows  his  wife  to  live  as  a  prosti-  consent : 
tute,  and  the  defendant  then  has  intercourse  with  negligence, 
her.     This  is  no  breach  of  duty  to  the  plaintiff.^ 

285.  Mere  negligence  in  regard  to  the  wife's  behavior; 
inattention  or  dulness  of  apprehension ;  or  even  permission 
of  indecent  familiarity  in  the  husband's  presence ;  such 
things  are  held  insufficient  to  bar  a  recovery  for  criminal 
conversation  with  the  wife,  though  they  may  be  shown  in 
reduction  of  damages.  Unless  the  conduct  of  the  husband 
amount  to  consent  to  the  defendant's  act  of  intercourse,  the 
defendant  is  liable.^ 

286.  It  follows  from  what  has  been  said  that  condonation 

of  the  wife's  offence  does  not  excuse  the  man  who  seduced 

her;    the  sole    consequence    of   the   condonation  „    , 

,111.1  1    ~  1       .    .  Condonation, 

is  that  the  husband  is    barred  from  obtaining  a 

divorce.     For  example :    The  defendant  has  criminal  inter- 

1  Bromley  v.  Wallace,  4  Esp.  237,  overruling  Wyndham  v.  Wycombe, 
id.  16. 

2  Id.  ;  Rea  v.  Tucker,  51  111.  110. 

*  '  Volenti  non  fit  injuria.' 

*  See  Gibber  v.  Sloper,  cited  4  T.  R.  655;  Hodges  v.  Windham,  Peake, 
39  ;  Sanborn  v.  Neilson,  4  N.  II.  501. 

5  See  Reaw.  Tucker,  51  111.  110;  Sanborn  v.  Neilson,  4  N.  H.  501; 
Foley  V.  Peterborough,  4  Doug.  294  ;  Greenleaf,  Evidence,  ii.  §  51.  But 
on  the  amount  of  damages  in  such  cases  see  Duberley  v.  Gunning,  4  T.  R. 
651.  And  as  to  that  case  see  Jones  v.  Sparrow,  5  T.  R.  257  ;  Chambers 
V.  Caulfield,  6  East,  244 ;  Blunt  v.  Little,  3  Mason,  102,  106 ;  Bigelow's 
L.  C.  Torts,  338. 


148  LAW  OF  TORTS.  [Part  IL 

course  with  the  plaintiif's  wife,  and,  when  fatally  sick,  the 
wife  discloses  the  fact  to  her  husband.  The  plaintiff  con- 
tinues to  care  for  his  wife  kindly  until  her  death.  The 
defendant  is  liable.^ 

1  Wilton  V.  Webster,  7  Car.  &  P.  198 ;  Bernstein  v.  Bernstein,  1892, 
2  Q.  B.  375 ;  Powers  v.  Powers,  10  P.  D.  174 ;  Sanborn  v.  Neiison, 
4  N.  H.   501. 


CHAPTER  VII. 

SLANDER   AND   LIBEL. 

Statement  of  the  duty.  A  owes  to  B  the  duty  not  to 
publish  of  B  (1)  defamation  in  its  nature  actionable  per  se, 
(2)  defamation  in  its  nature  not  actionable  per  se,  to  the 
damage  of  B. 

Defamation  is  false  imputation  upon  one's  self,  character, 
or  reputation,  in  the  way  of  slander  or  libel. 

Slander  is  defamation  published  orally,  or  in  like  manner. 

Libel  is  defamation  published  by  writing,  print,  or  figure. 

The  imputation  may  be  made  upon  one  as  a  man,  or  upon 
one  in  one's  vocation. 

Defamation  is  published  when  one  makes  the  imputation 
to  or  in  presence  of  another,  or  when  one  causes  it  to  come 
to  the  notice  of  another.  Publication  made  without  author- 
ity is  publication  only  by  the  one  making  it. 

Whenever  language  is  spoken  of  as  defamatory  it  is  under- 
stood to  be  false. 

What  the  phrase  '  defamation  in  its  nature  actionable  per 
se '  means  will  be  made  known  by  the  proposition  of  law 
following,  and  the  consideration  of  its  parts. 

§  1.  Of  Defamation  Actionable  per  se:   What  must 

BE  Peoved. 

287.  The  general  proposition  of  law  is,  that  the  first  of 
the  two  duties  above  stated  is  violated  by  A,  and  B  can 
maintain  an  action  against  him,  without  proving  special 
damage,  on  proof  of  the  publication  by  A  of  words,  language, 
or  figure  of  a  false  and  defamatory  character  concerning  B, 
in  any  of  the  following  ways  :  (1)  Where  A  imputes  to  B 
the  commission  of  a  criminal  offence  punishable  by  imprison- 


150  LAW  OF  TORTS.  [Part  IT. 

ment,  or  other  corporal  penalty,  in  the  first  instance,^  clearly 
if  the  offence  is  indictable  and  involves  moral  turpitude,  or 
is  punishable  by  an  infamous  punishment  ;2  (2)  where  A 
imputes  to  B  the  having  a  contagious  or  infectious  disease 
of  a  disgraceful  kind ;  (3)  where  A  makes  a  derogatory  im- 
putation concerning  B  in  respect  of  his  office,  business,  or 
occupation  ;  ^  (4)  where  the  defamation  is  a  libel.  Whether 
any  one  believed  the  defamatory  charge  is  immaterial  in 
regard  to  the  right  of  action.*  Each  of  the  foregoing  classes 
of  defamation  must  be  examined. 

§  2.  Of  the  Interpretation  of  Language. 

288.  Before  proceeding  to  the  consideration  of  any  of  these 
classes  of  breaches  of  duty,  it  should  be  observed  that,  subject 
Natural  sense  perhaps  to  one  exception,  the  language  or  figure 
of  language,  complained  of  is  to  be  understood  presumptively 
in  its  natural  and  usual  sense,  i.  e.  in  the  sense  in  which  the 
persons  who  heard  or  read  or  saw  it,  as  men  of  ordinary  intel- 
ligence, would  understand  it.^  It  is  not  to  be  construed  in  a 
mikler  sense  ('  mitiori  sensu  ')  merely  because  it  is  capable, 

1  Pollock,  Torts,  219,  2d  ed.  It  is  not  enough  that  the  offence  is  pun- 
ishable by  '  fine  in  the  first  instance,  with  possible  imprisonment  in 
default  of  payment.'  Id.,  referring  to  Webb  v.  Beavan,  11  Q.  B.  D.  609. 
The  offence  charged  need  not  in  England  be  indictable.    Webb  v.  Beavan. 

'  Brooker  v.  Cofiin,  5  Johns.  188 ;  post,  p.  1.55. 

3  Lovejoy  v.  Whitcoinb,  174  ]\Iass.  586;  Morasse  v.  Brochu,  151  Mass. 
5G7  ;  O'Brien  v.  Times  Publishing  Co.,  21  R.  I.  256. 

*  Bishop  V.  Journal  Newspaper  Co.,  168  Mass.  327. 

6  Hankinson  v.  Bilby,  16  M.  &  W.  442  ;  Simmons  v.  Mitchell,  6  App. 
Cas.  156  ;  Thompson  v.  Sun  Publishing  Co.,  91  Maine,  203  ;  Reid  v. 
Providence  Journal  Co.,  20  R.  I.  120  ;  Clute  v.  Clute,  101  Wis.  137.  See 
Gates  r.  New  York  Recorder  Co.,  155  N.  Y.  228;  Richmond  v.  Loeb,  19 
R.  I.' 120.  Whether  the  words  in  slander  are  legally  defamatory  or  not 
is,  commonly  at  least,  a  question  of  law.  Capital  Bank  v.  Henty,  7  App. 
Cas.  741.  See  Thompson  v.  Sun  Publishing  Co.,  supra;  also  Craig  v. 
Pyles,  101  Ky.  593  ;  Robertson  v.  Edelstein,  104  Wis.  440;  Schurick  ?;. 
Kollman,  50'lnd.  338;  Blake  v.  Smith,  19  R.  I.  476;  Loranger  v.  Loran- 
ger,  115  Mich.  681;  these  being  cases  of  vile  words  applied  to  women, 
some  actionable,  others  not.  In  criminal  cases  of  libel  the  jury  were 
made  the  judges  whether  the  language  was  libellous  or  not,  in  England, 


Chap.  VII.  §  2.]  SLANDER   AND   LIBEL.  151 

by  a  forced  construction,  of  being  interpreted  in  an  innocent 
sense.  For  example:  The  defendant  publishes  of  the  plain- 
tiff the  following  words:  '  You  are  guilty  of  the  death  of  D.' 
This  is  an  imputation  of  the  commission  of  murder,  and  is 
not  to  be  construed  '  mitiori  sensu. '  ^ 

289.  It  should  however  be  clear,  in  order  to  make  language 
actionable  without  proof  of  damage,  that  the  imputation  was 
slanderous  or  libellous  (according  to  its  nature)  -^^  ^^  ^^^^^  ^^ 
within  the  meaning  of  some  one  of  the  above  charges  of 
stated  classes.  If  this  be  not  the  case,  it  will  <>"°^i^ai  sort, 
not  be  deemed  a  breach  of  the  dut}^ ;  and  this  too  whether  the 
question  of  interpretation  come  before  the  court  or  before  the 
jury.  In  one  case  at  least  the  interj)retation  adopted  has  been 
apparently  contrary  to  the  understanding  of  men  of  ordinary 
intelligence;  and  that  is  where  an  imputation  is  made  of 
what  would  ordinarily  be  understood  as  a  crime,  but  the  lan- 
guage of  which  does  not  necessarily  import  a  crime  in  the 
legal  sense.  An  imputation  of  a  criminal  nature,  which  does 
not  import  a  crime  in  the  legal  sense,  is  not  actionable  per  se.'^ 
For  example:  TJie  defendant  publishes  of  the  plaintiff  the 
following  words:  '  He  has  taken  a  false  oath  against  me  in 
Squire  Jamison's  court.'  This  is  deemed  not  to  be  an  impu- 
tation of  the  commission  of  perjury  ;3  the  term  '  perjury  '  sig- 

by  Fox's  Act,  32  Geo.  3,  c.  60.  The  same  practice  prevails  in  this  coun- 
try. The  practice  under  Fox's  Act  has  been  adopted  in  England  in  civil 
cases  of  libel  also ;  in  some  of  our  States  the  same  is  true  (Heller  v.  Pulit- 
zer Publishing  Co.,  153  Mo.  205),  in  others  not. 

1  Peake  v.  Oldham,  1  Cowp.  275  ;  Cases,  122. 

•^  Ward  V.  Clark,  2  Johns.  10.     See  Crone  v.  Angell,  14  Mich.  340 
Brown  v.  Hanson,  .53  Ga.  632.       '  The  offence  need  not  be  specified  .  . 
at  all  if  the  words  impute  felony  generally.     But  if  particulars  are  given 
they  must  be  legally  consistent  with  the  offence  imputed.'      Pollock 
Torts,  220,  2d  ed.,  referring  to  Jackson  v.  Adams,  2  Bing.  N.  C.  402 
See  INIurphy  v.  Olberding,  107  Iowa,  547;  Stitzell  v.  Reynolds,  67  Penn 
St.  54 ;  Brown  v,  Myer.s,  40  Ohio  St.  99 ;   Underbill  v.  Welton,  32  Vt.  40 
But  see  Stroebel  v.  Whitney,  31  Minn.  384.    The  reason  for  the  strictness 
of  the  rule  no  doubt  is,  that  the  plaintiff  seeks  to  recover  without  proof 
of  actual  damage. 

«  Ward  V.  Clark,  supra ;  Cases,  128. 


152  LAW   OF  TORTS.  [Part  II. 

nifying  the  taking  of  a  false  oath  knowingly,  before  a  court 
of  justice,  with  reference  to  a  cause  pending. 

290.  Apart  from  this  particular  exception  in  regard  to  the 
lesral  sense  of  a  crime,  it  follows  from  what  has  been  said  that 
Indirect  use  of  it  is  immaterial  whether  the  defamatory  charge  be 
language.  affirmative  and  direct,  or  indirect  so  as  to  be 
matter  of  inference  merel}^  or  that  it  is  insinuating  ^  or  iron- 
ical, or  that  it  is  made  in  allegory  or  other  artful  disguise. 
It  is  enough  that  the  charge  would  naturally  be  understood  to 
be  defamatory  by  men  of  average  intelligence. 

§  3.    Of  the  Publication  of  Defa:siatiok  and 
Special  Daiviage. 

291.  It  should  be  noticed  that  defamation  is  not  published 
when  addressed  only  to  the  plaintiff,'^  no  one  else  being  pres- 
What  publi-  ent^  who  could  understand  the  language.^  That 
cation  means,  fg^  i\^q  language  or  representation  cannot  in  such 
a  case  be  actionable  as  defamation.  And  this  is  true,  though 
the  alleged  wrong  be  directly  followed  by  great  dejection  of 
mind  on  the  j^art  of  the  plaintiff,  and  consequent  sickness 
and  inability  to  carry  on  his  usual  vocation,  and  expense 
attending  upon  his  restoration  to  health  or  upon  the  employ- 
ment of  help  to  carry  on  his  business.  For  example :  The 
defendant  says  to  the  plaintiff,  '  You  have  committed  adul- 

1  See  Haynes  v.  Clinton  Printing  Co.,  169  Mass.  512. 

2  Or  to  another  by  his  direction.  Railroad  v.  Delaney,  102  Tenn. 
289. 

3  Sheffill  0.  Van  Deusen,  13  Gray,  304.  See  Marble  v.  Chapin,  132 
Mass.  225,  226.  Communication  of  defamation  by  the  defendant  to  his 
wife  has  lately  been  held  in  England  not  to  be  publication.  Wennhak 
V.  INIorgan,  20  Q.  B.  D.  635.  But  an  accusation  of  the  husband  in  the 
presence  of  his  wife  (or  the  converse)  would  be  a  publication.  Nolan  v. 
Traber,  49  Md.  460  ;  Hawver  v.  Hawver,  78  111.  412;  Duval  v.  Davey,  32 
Ohio  St.  604.  See  Wenman  v.  Ash,  13  C.  B.  836,  which  suggests  a  doubt 
in  regard  to  accusations  of  the  wife  made  to  the  husband. 

*  See  Hurtert  v.  Weines,  27  Iowa,  134.  As  to  translations  of  language 
see  Wilson  v.  Noonan,  27  Wis.  598;  Monson  v.  Lathrop,  96  AVis.  386, 
389.  Publication  may  be  effected  by  negligence.  Loibl  v.  Breidenbach, 
78  Wis.  49;  ]\Ionson  v.  Lathrop,  supra;  Vitzetelly  v.  Mudie's  Library, 
1900,  2  Q.  B.  170. 


Chap.  VII.  §  3.]  SLAKDER   AND   LIBEL.  153 

tery  with  F. '  The  plaintiff,  a  farmer,  suffers  immediate  dis- 
tress of  mind  and  body,  becomes  sick  and  unable  to  attend 
to  his  work,  his  crops  suffer,  and  he  is  compelled  to  employ 
extra  help  to  carry  on  necessary  work.  The  defendant  has 
not  violated  any  legal  duty  to  the  plaintiff.^ 

292.  Indeed,  if  the  language  complained  of  be  not  action- 
able per  se  (that  is,  if  it  be  not  actionable  without  the  proof 
of  special  damage),  the  fact  that  the  publication  of  the 
defamation  occurred  in  the  presence  of  a  third  person  who,  by 
authority,  reported  it  to  the  plaintiff  with  such  a  result  as 
that  stated  in  the  foregoing  example,  would  not,  it  is  held, 
make  the  d^famer  liable. ^ 

293.  This   however  proceeds   upon   the   ground   that   the 
effect  of  distress  of  mind,  followed  by  sickness,  is  not  such 
damage  as  the  law  requires  when  the  defamation    jj^j^^g^^  ^jg. 
is  not  actionable  per  se.     The  rule  of  law  upon    tress  not 
this  subject  is,  that  defamation  not  actionable  per      ^^^S^- 

se  may  be  a  breach  of  duty  if  it  be  attended  with  special 
damage.  But  special  damage  (and  damage  of  a  general 
nature  as  well)  must  be  the  natural  and  usual  result  of  the 
wrong  complained  of,  as  effect  follows  cause;  and,  as  it  is 
sometimes  declared  in  effect,  mental  distress  with  its  conse- 
quences will  not  satisfy  this  doctrine,  effect  upon  the  mind 
and  then  upon  health  being  largely  due  to  individual  pecu- 
liarities, and  not  being  certain  or  uniform.^  Or,  better  still, 
damage  resulting  from  fea?'  of  injury  to  reputation,  or  from 

^  Compare  Terwilliger  v.  Wands,  17  N.  Y.  54,  63,  and  Wilson  v.  Goit, 
id.  442,  which,  taken  together,  justify  the  example. 

-  Terwilliger  v.  Wands,  17  X.  Y.  54,  63,  reaffirmed  in  Wilson  v.  Goit, 
id.  442,  and  overruling  Bradt  v.  Towsley,  13  Wend.  253,  and  Fuller  v. 
Fenner,  16  Barb.  333.     But  see  McQueen  v.  Fulgham,  27  Texas,  463. 

8  Such  damages  are  commonly  spoken  of  as  '  remote.'  Compare  Vic- 
torian Rys.  Comm'rs  v.  Coultas,  13  App.  Cas.  222 ;  Spade  v.  Lynn  R.  Co., 
168  Mass.  285;  s.  c.  172  Mass.  488.  Some  cases  are  contra.  See  168 
]\Ia.ss.  290.  But  the  authorities  are  not  quite  consistent ;  mental  distress 
being  treated  as  ground  for  damages  if  a  right  of  action  is  otherwise 
shown.  See  ante,  p.  28;  Warren  v.  Boston  &  M.  R.,  163  Mass.  484, 
487 ;  Spade  v.  Lynn  R.  Co.,  172  Mass.  488,  490,  Holmes,  J.  (see  s.  c.  1G8 
IMass.  285);  Pugh  v.  London  Ry.  Co.,  1896,  2  Q.  B.  248;  Harvard  Law 
Rev.,  December,  1896,  p.  239. 


154  LAW  OF  TORTS.  [Part  II. 

wounded  feelings,  is  not  damage  to  reputation ;  that  can  only 
be  injured  when  it  has  been  defamed  before  a  third  person. 

294.  The  damage  complained  of  must   then  in  all  cases, 

whether  general  or  special,  have  been  sustained  through  the 

action  of  a  third  person.     Special  damage  may  so 
Act  of  a  third  , ,   .  ,  ,  i       - 1  i  t 

person  neces-  result  in  several  ways,  so  as  to  make  the  pubJica- 
sary :  ex-  ^ion  of  defamation  actionable  when  it  would  not  be 
actionable  per  se;  as  by  the  loss  of  a  marriage. 
For  example :  The  defendant  falsely  charges  the  plaintiff,  an 
unmarried  female,  with  unchastity,  in  the  presence  and  hear- 
ing of  C,  to  whom  the  plaintiff  is  engaged  to  be  married. 
C,  in  consequence  of  the  charge,  terminates  the  engagement. 
The  defendant  is  liable  to  the  plaintiff.^ 

295.  The  same  would  be  true  of  the  loss  of  the  consortium 
of  a  wife  ^  and  no  doubt  of  a  husband.^  The  same  would  also 
be  true  of  the  refusal  to  the  plaintiff  of  civil  entertainment 
at  a  public  house.'*  So  of  the  fact  that  the  plaintiff  has  been 
turned  away  from  the  house  of  her  uncle,  and  charged  not  to 
return  until  she  shall  have  cleared  up  her  character ;  ^  and  so 
in  general  of  the  loss  by  the  plaintiff  even  of  gratuitous  hos- 
pitable entertainment.^ 

296.  The  special  feature  of  the  law  of  slander  and  libel 
however  consists  in  this,  that  defamation  may  be  actionable 
per  se ;  and  the  consideration  of  the  various  phases  of  such 
defamation  will  now  follow.  Let  it  be  clearly  observed,  that 
in  defamation  arising  under  any  of  the  heads  now  to  be  sepa- 
rately examined,  the  plaintiff  establishes  the  breach  of  duty, 

1  See  Terwilliger  v.  Wands,  17  N.  Y.  54,  60.  But  see  McQueen  v. 
Fulghani,  27  Texas,  463. 

2  Bigaouette  v.  Paulet,  134  Mass.  123. 

8  See  Lynch  v.  Knight,  9  H.  L.  Cas.  577;  Jaynes  v.  .Ta\nies,  39  Hun, 
40 ;  Warner  v.  Miller,  17  Abb.  N.  C.  221  ;  Breiman  v.  Paasch,  7  Abb. 
N.  C.  249. 

*  Olmsted  v.  Miller,  ]  Wend.  506.  See  Moore  v.  Meagher,  1  Taunt. 
39. 

e  Williams  v.  Hill,  19  Wend.  305. 

*  Id. ;  Moore  v.  Meagher,  1  Taunt.  39 ;  ante,  p.  6. 


Chap.  VII.  §  4.]  SLANDER  AND  LIBEL.  155 

and  consequently  his  right  to  recover,  by  simply  proving 
publication.  1  In  cases  of  defamatory  publications  not  falling 
under  the  following  heads,  the  plaintiff  must  also  prove  dam  - 
age ;  that  is  the  only  difference  between  the  two  classes  of 
cases. 

§  4.  Of  the  Imputation  of  having  Committed  a  Crime. 

297.    Different  rules  have  obtained  in  different  States  con- 
cerning the  nature  of  the  offence  the  false  imputation  of  which 
is  actionable  per  se.     In  some  States  it  has  been 
laid  down  that,  unless  the  offence  charged  is  in-  charge  action- 
dictable  and  involves  moral  turpitude, ^  or  unless  able:  conflict 

^  .  of  authority. 

it  is  one  the  punishment  of  which  is  infamous, 
there  is  no  right  of  action  without  proof  of  special  damage. 
A  punishment  is  infamous  at  common  law  which  disqualifies 
the  offender  from  being  a  witness  in  the  courts ;  a  punish- 
ment is  not  infamous  when,  for  instance,  it  is  named  in  the 
same  category  with  the  punishment  of  trivial  offences,  such 
as  vagrancy,  begging,  and  fortune  telling,  and  a  charge  of 
such  an  offence  would  not  be  actionable  per  se.  For  example : 
The  defendant  publishes  of  the  plaintiff  the  charge  '  She  is  a 
common  prostitute. '  The  punishment  of  this  offence,  v/here 
charged,  is  classed  with  the  punishment  of  trivial  offences 
such  as  those  just  mentioned.  The  defendant  is  not  liable 
without  proof  of  special  damage.^ 

1  Webb  I'.  Beavan,  11  Q.  B.  D.  609.  On  the  question  who  are  pub- 
lishers see  Youmons  v.  Smith,  153  N.  Y.  214  (liability  of  a  printer). 

2  Lodge  V.  O'Toole,  20  R.  I.  405. 

8  Brooker  v.  Coffin,  5  Johns.  188;  Cases,  126;  Davis  v.  Carey, 
141  Penn.  St.  314;  McQueen  v.  Fulgham,  27  Texas,  463;  Underbill  v. 
Welton,  32  Vt.  40 ;  Pollard  v.  Lyon,  91  U.  S.  225.  See  also  as  to  vile 
words  against  a  woman,  Craig  v.  Pyles,  101  Ky.  593 ;  Schurick  v.  Koll- 
man,  50  Ind.  336  ;  Andres  v.  Koppenheaver,  3  Serg.  &  R.  255.  Perhaps 
charges  of  crime  punishable  by  imprisonment  in  a  state  prison  would 
cover  this  class  of  cases.  Common-law  punishments  of  the  pillory, 
stocks  (?),  and  the  like  were  infamous;  but  these  are  of  the  past.  Ex 
parte  Wilson,  114  U.  S.  417.  Punishment  of  simple  assaults  or  batteries 
is  not  infamous.  Andres  v.  Koppenheaver,  supra;  Billings  v.  Wing, 
7  Vt.  439. 


156  LAW  OF  TORTS.  [Part  II 

298.  In  other  States  probably,  as  in  England,  it  would  be 
enough  that  the  crime  was  punishable  in  the  first  instance  by 
imprisonment.^  In  still  other  States  it  is  not  necessary  that 
the  offence  should  be  punishable  by  imprisonment  at  all,  if 
the  offence  is  punishable  and  disgraceful;  this  rule  being 
laid  down:  Whenever  an  offence  has  been  charged  conviction 
of  which  subjects  the  offender  to  a  punishment  which,  though 
not  ignominious,  would  bring  disgrace,  the  accusation,  if  false, 
is  actionable  per  se.^  The  offence  accordingly  need  not  be 
indictable. 

299.  It  is  not  necessary  anywhere  that  the  accusation 
should  be  of  the  commission  of  a  crime  in  the  strict  sense ; 
Charge  of  -enough,  even  where  the  first  rule  above  stated 
misdemeanor,  prevails,  that  the  imputation  is  of  the  commission 
of  a  misdemeanor  if  the  offence  involves  moral  turpitude.^ 
For  example :  The  defendant  falsely  publishes  of  the  plaintiff 
the  words  '  You  have  removed  my  landmarks,  and  cursed  is 
he  that  removeth  his  neighbor's  landmark. '  The  words  are 
actionable  per  se.* 

300.  The  authorities,  further,  are  not  altogether  in  har- 
mony in  regard  to  the  question  whether  it  is  necessary  that 
Danger  of        the  charge,  if  true,  would  subject  the  object  of  it 

punishment  or  to  punishment,  or  whether  the  test  in  this  partic- 
degradation  t       •      ^        ii-         •         iti  ,., 

—which  the  ular  IS  the  degradation  nivolved;  but  the  weight 
*®^*-  of  authority  favors  the  latter  as  the  test,  assuming 

that  the  offence  charged  is  in  law  a  crime.  Although  then 
the  charge  shows  that  the  punishment  has  already  been  suf- 
fered, and  does  not  render  the  plaintiff  liable  to  indictment, 
the  degradation  involved  in  the  (false)  accusation  makes  the 

^  Ante,  p.  150,  note. 

2  Miller  v.  Parish,  8  Pick.  384 ;  Brown  v,  Nickerson,  5  Gray,  1  (im- 
ptiting  drunkenness  to  a  woman  in  a  single  instance).  See  Meyer  v. 
Schleichler,  29  Wis.  646;  Frisbie  v.  Fowler,  2  Conn.  707;  Zeliff  v.  Jen- 
nings, 61  Texas,  458,  466. 

3  Young  V.  Miller,  3  Hill,  21;  Smith  v.  Smith,  2  Sneed,  473;  Heck  v. 
Stitzel,  21  Penn.  St.  522.     See  Andres  v.  Koppenheaver,  3  Serg.  &  R.  255. 

*  Young  V.  Miller,  supra.  But  the  meaning  of  '  moral  turpitude '  is 
not  fixed. 


Chap.  VII.  §  5.]  SLANDER   AND   LIBEL.  157 

defendant  liable.^  For  example:  The  defendant  falsely  says 
of  the  plaintiff,  '  Robert  Carpenter  [the  plaintiff]  was  in  Win- 
chester jail,  and  tried  for  his  life,  and  would  have  been  hanged 
had  it  not  been  for  L,  for  breaking  open  the  granary  of  farmer 
A,  and  stealing  his  bacon. '  The  defendant  is  liable. ^  Again : 
The  defendant  falsely  says  of  the  plaintiff,  '  He  was  arraigned 
at  Warwick  for  stealing  of  twelve  hogs,  and,  if  he  had  not 
made  good  friends,  it  had  gone  hard  with  him.'  The  defend- 
ant is  liable.^  Again:  The  defendant  falsely  says  of  the 
plaintiff,  '  He  is  a  convict,  and  has  been  in  the  Ohio  peniten- 
tiary.'     The  plaintiff  can  maintain  an  action.* 

§  5.    Of  the  Imputation  of  having  a  Contagious  or 
Infectious  Disease  of  a  Disgraceful  Kind. 

301.  By  the  early  common  law  a  charge  to  come  under  this 
head  must  have  been  of  having  the  leprosy,  or  the  plague,  or 
the  syphilis.  At  the  present  time  the  duty  has  Extension  of 
come  to  be  so  far  enlarged  as  to  make  it  actionable     *^®  ^*^- 

to  publish  false  accusations  concerning  another  of  the  having 
any  disease  of  a  contagious  or  infectious  nature  involving  dis- 
grace. For  example:  The  defendant  falsely  charges  the 
plaintiff  with  having  the  gonorrhcEa.  This  is  actionable 
per  se.^ 

302.  This  doctrine  of  law  proceeds  upon  the  ground  that 
charges  of  such  a  kind  tend  to  exclude  a  person  from  society ; 
and  the  rule  requires  the  charge  to  be  made  in  the  present 

1  Of  course  if  the  charge  is  in  writing,  it  is  libellous.  Morrissey  v. 
Telegram  Publishing  Co.,  19  R.  I.  124. 

2  Carpenter  v.  Tarrant,  Cas.  temp.  Hardw.  339.  The  plaintiff  al- 
ways alleges  falsity  of  the  charge,  but  need  not  prove  it. 

8  Halley  v.  Stanton,  Croke  Car.  268. 

*  Smith  V.  Stewart,  5  Barr,  372.  It  would  be  otherwise  if  the  words 
were  true.  Baum  v.  Clause,  5  Hill,  199.  A  person  is  no  longer  a  felon 
after  suffering  the  punishment  of  felony ;  so  that  the  fact  that  he  was 
once  a  felon  would  not  sustain  a  plea  of  the  truth  of  a  charge  of  felony. 
Leyman  v.  Latimer,  3  Ex.  Div.  352. 

5  Watson  V.  McCarthy,  2  Kelly,  57.  See  Bloodworth  v.  Gray,  7  Man. 
&  G.  334. 


158  LAW  OF  TORTS.  [Part  IL 

tense.  To  accuse  another  falsely  of  having  had  a  disgraceful 
disease  is  not  actionable  without  proof  of  special  damage. 
For  example:  The  defendant  says  of  the  plaintiff,  '  She 
has  had  the  pox.'  The  defendant  is  not  liable  though 
the  charge  be  false,  unless  the  plaintiff  prove  special 
damage.  ^ 

§  6.    Of  an  Imputation  affecting  the  Plaintiff  in 
HIS  Office,  Business,  or  Occupation. 

303.  In  order  that  an  imputation  may  in  law  be  said  to 
affect  a  man  injuriously  under  this  head,  and  be  actionable 

Natural  ten-  P®^  ^^'  ^^  should  have  a  natural  tendency  to  harm 
dency  to  him  in  his  occupation.     It  is  not  enough  that  it 

^^^'  may  possibly  so  injure  him.     If  it  has  not  a  natural 

tendency  to  injure  him,  that  is,  if  it  would  not  be  the  usual 
effect  of  the  charge  to  injure  the  plaintiff  in  his  occupation, 
as  by  causing  discharge,  the  plaintiff  cannot  recover  without 
proving  special  damage.  For  example :  The  defendant  pub- 
lishes of  the  plaintiff,  a  clerk  to  a  gas-light  company,  the 
words,  '  You  are  a  disgrace  to  the  town,  unfit  to  hold  your 
situation  for  your  conduct  with  harlots.  You  are  a  disgrace 
to  the  situation  you  hold. '  The  j^laintiff  cannot  recover  with- 
out proof  of  actual  damage,  the  language  not  having  a  natural 
tendency  to  cause  the  plaintiff's  discharge  from  his  employ- 
ment.^ 

304.  Defamation  has  a  natural  tendency  to  injure  the  plain- 
tiff in  his  office,  business,  or  occupation,  within  the  meaning 
of  the  rule,  when  for  instance  it  strikes  at  his  qualification 
for  the  performance  of  the  duties  of  the  place,  or  alleges 
some  misconduct  or  negligence  in  the  course  of  transacting 
these  duties,^  or  business  embarrassment  or  want  of  credit 
in  the  case  of   a  merchant.^     For  example  :   The  defendant 

1  See  Carslake  v.  Mapledoram,  2  T.  R.  473;  s.  c.  L.  C.  Torts,  84. 

2  Lumby  t'.  Allday,  1  Tyrwli.  217 ;  Cases,  131.  See  Morasse  v. 
Brochu,  151  Mass.  507,  570. 

8  Id. ;  Camp  v.  Martin,  23  Conn.  86. 
*  Mclntyre  v.  "Weinert,  195  Penn.  St.  52. 


Chap.  VII.  §  6.]  SLANDER  AND  LIBEL.  159 

charges  the  plaintiff,  a  clergyman,  holding  the  office  of  pastor 
of  a  church,  with  incontinence.  This  is  ground  of  an  action.^ 
Again:  The  defendant  says  of  the  plaintiff,  a  lawyer,  the 
words  having  relation  to  the  plaintiff's  professional  qualifica- 
tions, '  He  is  a  dunce, '  This  may  perhaps  be  treated  as  a 
breach  of  the  defendant's  legal  duty  to  the  plaintiff.- 

305.  When  the  defamation  complained  of  does  not  show  on 
its  face  that  it  was  published  of  the  plaintiff  in  relation  to 
his  occupation,  this  must  be  made  to  appear;'^  though  even 
then,  as  has  been  stated,  the  defamation  will  not  be  action- 
able unless  it  had  a  natural  tendency  to  injure  the  plaintiff 
in  his  occupation,  in  the  sense  already  explained.  In  cases 
however  in  which  the  imputation  is  alleged  to  have  been 
made  of  the  plaintiff  in  his  occupation,  when  the  same  does 
not  have  the  natural  tendency  mentioned,  it  may  be  shown  by 
the  plaintiff  that  the  defamation  was  published  under  circum- 
stances which  bring  the  case  within  the  rule  of  liability.  But 
without  such  evidence,  the  plaintiff  must  fail.  For  example : 
The  defendant  charges  the  plaintiff,  as  a  physician,  with  in- 
continence. This  does  not  imply  disqualification,  or  nec- 
essarily professional  misconduct;  and,  without  evidence 
connecting  the  imputation  with  the  plaintiff's  professional 
conduct,  he  cannot  recover.* 

306.  If  the  imputation  in  itself   come  within  the  rule  of 

liability  under  this  head,  it  matters  not  that  it  was  published 

of  a  servant,  even  one  actinor  in  a  menial  capacity. 

i.  ./  Servants. 

For  example:  The  defendant  falsely  speaks  the 

following  of  the  plaintiff,  a  menial  servant,  before  the  hitter's 

master,  '  Thou  art  a  cozening  knave,  and  hast  cozened  thy 

1  Gallwey  v.  Marshall,  9  Ex.  29i. 

2  Feard  v.  Jones,  Croke  Car.  382.  It  is  doubtful  whether  a  court 
would  now  treat  such  a  statement  as  actionable.  To  call  a  lawyer  a 
'  cheat '  is  held  actionable.  Rush  v.  Cavenaugh,  2  Barr,  187.  Further 
see  Goodenow  v.  Tappan,  1  Ohio,  60;  Doyley  v.  Roberts,  3  Bing.  N.  C. 
835. 

8  Ayre  r.  Craven,  2  Ad.  &  E.  2 
*  Id. 


IGO  LAW  OF  TORTS.  [Part  11. 

master  of  a  bushel  of  barley. '     The  defendant  is  liable  to  the 
plaintiff.  ^ 

307.  It  is  probably  actionable  to  impute  disqualification  of 
a  person  holding  a  merely  honorary  or  confidential  office,  not 
Honorary  of  emolument.^  It  certainly  is  so  to  impute  to 
office.  such  a  person  misconduct  in  the  office.^  For 
example:  The  defendant  says  of  the  plaintiff,  who  holds  a 
public  office  of  mere  honor,  touching  his  office,  '  You  are  a 
rascal,  a  villain,  and  a  liar. '  This  is  a  breach  of  the  duty 
under  consideration.'' 

308.  In  all  cases  included  under  the  present  section,  it  is 
necessary  that  the  plaintiff  should  have  been  in  the  exercise 
Exercise  of  of  the  duties  of  the  particular  vocation  at  the 
vocation.  ^j^-j^jg  gf  ^]^g  alleged  publication  of  the  defamation.^ 
For  example:  The  defendant  says  of  the  plaintiff,  who  had 
been  a  lessee  of  tolls  at  the  time  referred  to  by  the  defendant, 
'  He  was  wanted  at  T;  he  was  a  defaulter  there.'  The  words 
are  not  actionable  per  se.^ 

§  7.    Of  an  Imputation    tending  to  Disinherit  the 

Plaintiff. 

309.  If  the  words  tend  to  impeach  a  present  title  of  the 
plaintiff,  the  action,  though  commonly  called  an  action  for 
jj  ,  .  _  slander  of  title,  is  not  properly  speaking  an  action 
gard  to  such  of  slander ;  as  has  already  been  stated,  such  a  case 
*^*^^^'  is  ground  for  a  special  action,  governed  by  rules 
of  law  distinct  from  those  of  defamation.'' 

310.  Cases  of  actions  for  defamation  tending  to  defeat  an 
expected  title  are  rare,  and  appear  to  have  been  confined  to 

1  Seaman  v.  Bigg,  Croke  Car.  480. 

2  Onslow  V.  Home,  3  Wils.  186. 
8  Id. 

''  A.ston  V.  Blagi'ave,  Strange,  617. 

8  Bellamy  v.  Burch,  16  M."&  W.  .590;  Gallwey  v.  Marshall,  9  P^x.  294. 
See  Ritchie  v.  Widdemer,  .59  N.  J.  200. 

«  Bellamy  v.  Burch,  supra.  Some  of  the  old  cases  are  contra,  but 
they  were  overruled. 

'  See  ante,  pp.  86-89. 


Chap.  YII.  §  8]  SLANDER   AND   LIBEL.  161 

charges  impeaching  the  legitimacy  of  birth  of  an  heir  appar- 
ent. Such  an  imputation  has  been  deemed  actionable,  as 
being  likely  to  cause  the  plaintiff's  disherison.  ^  But  that  is 
unsound  doctrine,  and  has  met  with  no  favor  in  modern 
times.  The  reason  is  plain ;  the  act  complained  of  is  no  vio- 
lation of  any  legal  right,  since  the  heir  apparent  can  have  no 
legal  right  to  the  inheritance.  The  ancestor  owns  the  estate, 
and  may  do  as  he  will  with  it.^     Damage  must  be  proved. 

§  8.    Of  AN  Imputation  conveyed  by  Writing,  Print- 
ing, OR  Figure;  that  is,  of  Libel. 

311.  The    four   preceding    sections    exhaust    the    possible 
heads  of  oral  defamation,  actionable  per  se ;  that  is,  of  slan- 
der.    Libellous  defamation  ma}'-  also  be  conveyed  Definition  of 
in  any  of  the  four  ways  above  considered ;  but  it  ^i^^^- 

may  also  be  conveyed  in  other  ways.  A  libel  is  a  writing, 
print,  picture,  or  effigy,  calculated  to  bring  one  into  hatred, 
ridicule,  or  disgrace.*^ 

312.  The  definition  shows  that  the  law  of  libel  is  of  wider 
extent  than  that  of  slander.  Many  words  when  written  or 
printed  become  actionable  per  se  which,  if  they  Libel  wider 
had  been  orally  published,  would  not  have  been  ^^^^  slander, 
actionable  without  proof  of  special  damage.  And  besides 
these  there  is  the  whole  class  of  defamatory  representations, 
such  as  picture  and  effigy,  which  in  their  nature  are  incapable 
of  oral  publication.  Whether  the  distinction  is  well  founded 
or  not,  the  manner  of  the  publication,  as  libel,  makes  it 
actionable.^  For  example:  The  defendant  writes  and  pub- 
lishes of  the  plaintiff  the  following:  'I  sincerely  pity  the 
man  that  can  so  far  forget  what  is  due  not  only  to  himself, 
but  to  others,  who,  under  the  cloak  of  religious  and  spiritual 

1  Humphrys  v.  Stanfeild,  Croke  Car.  469. 

2  Hoar  V.  Ward,  47  Vt.  657 ;  Onslow  v.  Home,  3  Wils.  188. 

8  HoUenbeck  v.  Hall,  103  Iowa,  214;  IMcDermott  v.  Union  Credit  Co., 
76  Minn.  84,  87. 

*  Thorley  v.  Kerry,  4  Taunt  355;  Cases,  135;  McDermott  v.  Union 
Credit  Co.,  76  Minn.  84;  Haynes  v.  Clinton  Printing  Co.,  169  Mass.  512. 
See  Call  v.  Hayes,  id.  586. 

11 


162  LAW   OF   TORTS.  [Part  II. 

reform,  hypocritically,  and  with  the  grossest  impurity,  deals 
out  his  malice,  uncharitableness,  and  falsehoods.'  The  plain- 
tiff can  maintain  an  action  for  libel.^  Again:  The  defend- 
ant prints  the  following  of  the  plaintiff :  '  Our  army  swore 
terribly  in  Flanders,  said  Uncle  Toby ;  and  if  Toby  was  here 
now,  he  might  say  the  same  of  some  modern  swearers.  The 
man  at  the  sign  of  the  Bible  [the  plaintiff]  is  no  slouch  at 
swearing  to  an  old  story.'  The  imputation  is  libellous, 
though  not  importing  perjury. ^  Again:  The  defendant  prints 
the  following  of  the  plaintiff' :  '  Mr.  Cooper  [the  plaintiff']  will 
have  to  bring  his  action  to  trial  somewhere.  He  will  not 
like  to  bring  it  in  New  York,  for  we  are  known  here,  nor 
in  Otsego,  for  he  is  known  there.'  The  publication  of  this 
languaGfe  is  deemed  libellous.^ 

313.  At  common  law,  no  immunity  is  conferred  upon  the 

proprietors,   publishers,  or  editors  of  books,  newspapers,   or 

^  V,-  V  ^  other  prints,  for  the  publication  of  defamation. 
Publishers  of  •'^  '  ■■■ 

books,  news-  They  are  liable  for  the  publication  of  libellous 
papers,  etc.  matter  in  their  prints,  though  the  publication  may 
have  been  made  without  their  knowledge  or  even  against 
their  orders.  This  is  not  true  of  news-vendors.*  And  it  is 
held  that  if  the  alleged  libel  were  of  such  a  nature  that  a  man 
of  common  intelligence  could  not  know  that  it  was  intended 
for  a  libel,  and  it  was  not  in  fact  known  that  it  was,  neither 
the  editor  nor  the  proprietor  of  the  printing  establishment,  or 
of  the  print,  would  be  liable.^ 

314.  Legislation  in  various  States  has  touched  the  subject 
of  newspaper  libel  more  or  less. 

§  9.  Of  the  Truth  of  the  Charge. 

315.  The  truth  of   the   charge,  whether   the   charge   was 
made    orally   or   by   printed   or   written   language,    if   fully 

1  Thorley  v.  Kerry,  supra. 

2  Steele  v.  Southwick,  9  Johns.  214. 
*  Cooper  V.  Greeley,  1  Denio,  3i7. 

4  Emmens  v.  Pottle,  16  Q.  B.  Div.  357 ;  Cases,  141. 
6  Smith  V.  Ashley,  11  Met.  367. 


Chap.  VIL§9.]  SLANDER   AND   LIBEL.  163 

proved,^  is,  in  the  absence  of  statute,^  a  defence  to  an  action 
for  damages  for  the  publication  of  alleged  defa-  ^he  truth  an 

mation,    though    malicious    and   not    reasonably  absolute  de- 

.  fence   not 

believed  to   be   true.^     Evidence  of  such  a  fact  affected  by 
shows  indeed  that  the  charge  is  not  legally  de-  ^a^^ce. 
f amatory.     A  person  has  no  right  to  a  false  character;  and 
his  real  character  suffers  no  damage,  such  at  least  as  the  law 
recognizes,  from  speaking  the  truth. 

316.  This  rule  appears  to  go  to  the  extent  of  justifying  a 
party  in  publishing  of  another  the  fact  that  he  has  suffered 
the  penalty  of  the  law  for  the  commission  of  crime,  even 
though  he  may  have  been  pardoned  therefor  and  have  since 
become  a  good  and  respectable  citizen.  For  example:  The 
defendant  publishes  of  the  plaintiff  the  statement  that  the 
latter  had  several  years  ago  stolen  an  axe.  That  is  true, 
though,  after  conviction  thereof,  the  plaintiff'  was  pardoned, 
and  has  since  become  a  trusted  citizen  and  an  office-holder. 
The  accusation  is  deemed  justifiable  in  law.* 

317.  Belief  in  the  truth  of  the  accusation  however  is  not  a 
defence,^  though  the  law  allows  the  defendant  to  show  it  in 
mitigation  of  damages.^  The  charge  being  renewed  in  the 
allegation  that  it  was  true,  must  be  fully  made  out  by  the 
defendant.'  And  this  is  equally  true  of  the  editors  and 
publishers  of  books,  newspapers,  or  periodicals,  as  of  other 
persons.^ 

^  See  Murphy  v.  Olberding,  107  Iowa,  54:7,  charge  of  crime;  Xeilson 
V.  Jensen,  oG  Neb.  430.  If  the  charge  contains  particulars,  all  must  be 
established  if  the  truth  is  set  up.  See  the  cases  just  cited.  It  is  a  dan- 
gerous defence  to  plead,  for  to  fail  in  establishing  it  shows  malice,  in 
the  absence  of  statute.     See  Odgers,  Slander  and  Libel,  178. 

2  There  are  statutes  upon  the  subject  in  some  of  the  States,  probably 
in  most  of  the  States  as  to  criminal  prosecutions  for  libel. 

8  McCloskey  t-.  Pulitzer  Publishing  Co.,  152  Mo.  339. 

4  Baum  V.  Clause,  5  Hill,  109.  See  Rex  v.  Burdett,  4  B.  »&  Aid.  314, 
325. 

5  Campbell  v.  Spottiswoode,  3  Best  &  S.  769  ;  Smith  v.  Johnson,  69 
Vt.  281. 

6  Odgers,  Slander,  302.  589. 

T  Murphy  v.  Olberding.  107  Iowa,  547. 
*  Campbell  v.  Spottiswoode,  supra. 


164  LAW  OF  TORTS.  [Part  II. 

318.  The  truth  of  effigy,  picture,  or  sign,  so  far  as  such 
may  relate  to  the  physical  person  of  the  party  intended,  and 
Truth  of  effigy  ^^^  to  his  character,  is  (probably)  no  justifica- 
or  picture.  tion  of  a  malicious  publication.  A  man  is  not  re- 
sponsible for  his  physical  peculiarities,  and  may  well  invoke 
protection  of  the  law  against  one  who  will  parade  them  before 
the  public.^ 

§  10.    Of  Privileged  Communications  :  Malice. 

319.  The  plaintiff  in  an  action  for  defamation  is  entitled 

to  recover  upon  proof  of  the  publication  (with  special  damage 

„  ,.        .        if  the  case  does  not  fall  under  one  of  the  four 
Malice  not 

necessary  to  heads);  proof  of  malice,  in  other  words  malice  as 
e  action.  ^^^  entity,  is  not  necessary,  in  any  sense  of  the 
term,  to  make  a  case.  It  is  indeed  common  to  say  that 
malice  is  presumed  or  implied  upon  proof  of  the  publication ; 
but  that  means  nothing,  and  is  only  misleading,  for  the  pre- 
sumption or  implication  cannot  be  overturned  by  evidence  of 
want  of  malice.  Malice,  touching  the  making  a  prima  facie 
case,  is  only  a  name  arbitrarily  applied ;  it  is  simply  a  fiction. 

320.  If  this  were  all,  the  result  would  be  that,  unless  the 
defendant  could  prove  the  truth  of  the  charge,  he  would  be 

liable.  But  this  would  be  to  lay  an  embargo 
justify  defam-  upon  the  freedom  of  speech  not  to  be  tolerated, 
atory  pubii-      There  are  circumstances  under  which  men  must 

cation.  .  11- 

be  permitted  to  speak  their  convictions,  however 

erroneous;    the  law  could  not  but  permit,  and    hence    does 

permit  it.^     There  are,  in  a  word,   occasions  in  which  one 

1  Compare  Pollard  v.  Photographic  Co.,  40  Ch.  D.  3i5,  353,  enjoining 
display  of  photograph;  Hanfstaengl  v.  Empire  Palace,  1894,  2  Ch.  1; 
Hanfstaengl  v.  Newnes,  1894,  3  Ch.  109.  But  see  Dockrell  v.  Dougall, 
78  Law  T.  Rep.  840;  Atkinson  4;.  Doherty,  80  N.  W.  Rep.  (Mich.)  285, 
denying  the  so-called  right  of  privacy. 

-  The  doctrine  of  privileged  communications  is  only  a  special  exam- 
ple of  a  great  law  of  privilege  i:>ertaining  to  human  affairs  generally  ;  to 
wit,  the  right  to  inflict  harm  upon  another  in  just  so  far  as  may  reason- 
ably be  deemed  necessary  for  one's  own  protection,  or  for  the  protection 


Chap.  VII.  §  10.]  SLANDER   AND  LIBEL.  165 

is  excused  for  publishing  what  would  otherwise  be  action- 
able defamation.^  The  publication  of  the  charge  in  such 
cases  is  said  to  be  '  privileged ; '  the  charge  itself  being 
termed  a  privileged  communication. 

321.  Privileged  communications  are  of  two  kinds:  abso- 
lutely privileged  and  prima  facie  privileged  communications. ^ 
Absolute  privilege  imports  that  the  privilege  can-  Kinds  of 
not  be  overturned  by  evidence  that  the  publica-  privilege, 
tion  was  made  with  malice  (as  an  entity);  prima  facie  privi- 
lege, that  the  privilege  may  be  overturned  by  such  evidence. 
Here,  in  answer  to  a  prima  facie  privilege,  set  up  in  defence, 
is  the  domain  of  malice,  as  a  subject  of  proof,  in  regard  to 
the  right  of  action  for  defamation. 

322.  Apart  from  statute,  absolute  privilege  is  confined  to 
the  State,  and  that  too  to  its  three  departments,  legislative, 
executive  '^  and  judicial ;  such  privilege  being  jus-  Absolute  priv- 
tified  only  upon  grounds  of  necessity.     First,  of  ^}^^^  '■  what 
statements  made  in  judicial  proceedings.     What-  proceedings  of 
ever  is  said  orally,   or  stated  in  writing,  in  the  ^^^  courts, 
course  of   and  duly  relating    to  such    proceedings  by  those 
concerned    therein,   is  absolutely  privileged.     According   to 
recent   English   authority,   it   matters  not  whether  the   lan- 
guage was  material  or  relevant,  or  not;  it  is  deemed  to  be 
against  public  policy  to  permit  any  inquiry  in  regard  to  that.* 
It  is  enough  if  it  relates  to  the  cause  before  the  court.     For 
example :  Counsel  for  the  defendant,  in  the  course  of  arguing 
a  criminal  cause,  makes  base  insinuations  against  the  prosecu- 

of  another,  where  that  is  proper.  So  far  others  must  yield,  or  the  vin- 
dication of  rights  in  many  cases  would  be  an  empty  name ;  but  further 
no  one  is  required  to  give  way. 

1  Merivale  v.  Carson,  20  Q.  B.  Div.  279,  280;  Cases,  144,  Lord  Esher 
pointing  out  that  what  all  men  may  do  is  no  privilege. 

2  Hastings  v.  Lusk,  22  Wend.  410 ;  Cases,  151 ;  Shelter  v.  Gooding, 
2  Jones,  175. 

^  Including,  it  seems,  the  chief  executive  of  a  city,  in  his  official  com- 
munications. Trebilcock  v.  Anderson,  117  Mich.  39;  Wachsmuth  u. 
Merchants'  Bank,  96  Mich.  427. 

*  Munster  v.  Lamb,  11  Q.  B.  Div.  588  (counsel)  ;  Scott  v.  Stansfield, 
L.  R.  3  Ex.  220  (judge)  ;  Seaman  v.  Netherclift,  2  C.  P.  Div.  53  (witness)  ; 
Henderson  v.  Broomhead,   4  H.  &  N.  5G9  (statements  in  pleadings). 


166  LAW  OF  TORTS.  [Part  II. 

tor  in  relation  to  the  evidence  given,  which  insinuations 
would  be  actionable  if  not  privileged.  No  action  can  be 
maintained  for  making  them ;  no  inquiry  into  their  bearing 
upon  the  case  will  be  allowed.^  Again:  A  witness  on  the 
stand,  after  examination,  volunteers  a  statement  in  vindica- 
tion of  himself,  which  contains  a  charge  of  crime  against  a 
stranger  to  the  trial.      This  is  not  actionable.^ 

323.  Formerly  relevancy  appears  to  have  been  regarded  in 
England; 3  and  in  this  country  it  is  generally  laid  down  that 
the  language  used,  in  order  to  be  absolutely 
e  evan  y.  privileged,  must  either  have  been  legally  relevant 
or  must  have  been  believed  to  be  relevant.  This  has  been 
laid  down  of  the  language  of  parties,^  of  counsel,^  of  wit- 
nesses,^ of  jurymen,"  and  of  pleadings.^  For  example:  The 
defendant,  in  the  argument  of  his  own  cause  in  court,  falsely 
charges  perjury  upon  the  plaintiff,  the  charge  not  being  rele- 
vant, or  believed  by  the  defendant  to  be  relevant,  to  any 
question  before  the  court.  The  defendant  is  liable.^  Again: 
The  defendant,  during  the  deliberations  of  a  jury  of  which 
he  is  a  member,  held  in  the  jury  room,  concerning  their  ver- 
dict in  a  suit  brought  by  the  present  plaintiff,  says  he  would 
not  believe  the  plaintiff  under  oath,  and  accuses  him  of  hav- 

1  Munster  v.  Lamb,  11  Q.  B.  Div.  588. 

2  Seaman  v.  Netherclift,  supra. 

3  Hoar  V.  Wood,  3  Met.  193,  198;  Hastings  v.  Lusk,  22  Wend.  410; 
Cases,  151,  156-159 ;  Hodgson  v.  Scarlett,  1  B.  &  Aid.  232. 

*  Hoar  V.  Wood,  supra. 

5  Hastings  v.  Lusk,  supra;  Youmans  v.  Smith,  153  N.  Y.  214;  Marsh 
V.  Ellsworth,  50  N.  Y.  309 ;  McDavitt  v.  Boyer,  169  111.  475,  483 ;  Hoar 
V.  Wood,  supra;  McLaughlin  v.  Cowley,  127  Mass.  316,  319;  Rice  v. 
Coolidge,  121  Mass.  393;  Jennings  v.  Paine,  4  Wis.  358;  Morgans. 
Booth,  13  Bush,  480. 

6  McDavitt  V.  Boyer,  supra;  White  v.  Carroll,  42  X.  Y.  161;  Barnes 
V.  McCrate,  32  Maine,  442  ;  Calkins  v.  Sumner,  13  Wis.  193  ;  Lea  v. 
White,  4  Sneed,  111 ;  Storey  v.  Wallace,  60  111.  51  ;  McLaughlin  v  Cowley, 
supra;  Rice  v.  Coolidge,  supra.     See  Acre  v.  Starkweather,  118  Mich.  214. 

■^  Dunham  v.  Powers,  42  Vt.  1. 

8  McLaughlin  i^.  Cowley,  supra;  Wyatt  v.  Buell,  47  Cal.  624;  Garr 
V.  Selden,  4  Comst.  91 ;  Johnson  v.  Brown,  13  W.  Va.  71. 

9  Hastings  v.  Lusk,  22  Wend.  410;  Cases,  151. 


Chap.  VII.  §  10.]  SLANDER   AND   LIBEL.  167 

ing  obtained  an  insurance  upon  property  by  fraud  and  after- 
wards committing  perjury  in  a  suit  for  the  insurance  money. 
This  is  not  legally  relevant,  but  the  defendant  acts  honestly 
believing  it  to  be  so  and  that  he  is  discharging  his  duty  in 
the  matter.     The  plaintiff  cannot  recover.^ 

324.  The  protection  extends  to  the  allegations  contained 
in  affidavits  made  in  the  course  of  a  trial, ^  even  thouQ"h  the 
persons  making  them  be  not  parties  to  the  cause ;  ^     jr     f     th 
and  to  statements  of  a  coroner  holding  an  inquest.*     privilege 
In  a"  word,  it  applies  apparently  to  all  statements     ®^^^'^^^- 
made  in  the  real  discharge  of  duty  in  court. ^ 

325.  The  law  upon  this  subject  has  been  thus  (in  sub- 
stance) generalized :  No  action  either  for  slander  or  libel  can 
be  maintained  against  a  judge,  magistrate,  or  person  sitting 
in  a  judicial  capacity  over  any  court,  judicial,  military, ^  or 
naval,  recognized  by  and  constituted  according  to  law;  nor 
against  suitors,  prosecutors,  witnesses,  counsel,  or  jurors,  for 
anj' thing  said  or  done  relative  to  the  matter  in  hand,  in  the 
ordinary  course  of  a  judicial  proceeding,  investigation,  or 
inquiry,  civil  or  criminal,  by  or  before  any  such  tribunal, 
however  false  and  malicious  it  may  be.^ 

326.  A  like  rule  of  law  to  that  by  which  defamatory  state- 
ments made  in  the  course  of  judicial  j^roceedings  are  privileged 
governs  all  statements  and  publications  made  in  proceedings  of 
the  course  of  the  proceedings  of  the  Legislature.**  Legislature. 
The  occasion  is  deemed  to  afford  an  absolute  justification  for 

^  Dunham  v.  Powers,  42  Vt.  1. 

2  Garr  v.  Selden,  4  Comst.  91. 

3  Henderson  v.  Broonihead,  4  H.  &  N.  569. 

4  Thomas  v.  Churton,  2  Best  &  S.  475. 

5  Goodenow  v.  Tappan,  1  Ohio,  60  ;  Dunham  r.  Powers,  supra. 

«  Jekyll  IK  Moore,  2  Bos.  &  P.  N.  R.  341  ;  Dawkins  v.  Ptokeby,  L.  R. 
8  Q.  B.  255;  s.  c.  7  H.  L.  744,  752  (witness);  Dawkins  v.  Saxe- Weimar, 
1  Q.  B.  D.  499. 

'  Starkie,  Slander  and  Libel,  184  (4th  ed.  by  Folkard)  ;  Munster  v. 
Lamb,  11  Q.  B.  Div.  588,  and  cases  cited. 

8  Odgers,  Slander,  187. 


168  LAW   OF  TORTS.  [Part  II. 

the  use  of  language  otherwise  actionable,  so  long  as  it  relates 
to  the  proceedings  under  consideration.  No  member  of  the 
Legislature  is  liable  in  a  court  of  justice  for  anything  said 
by  him  in  the  transaction  of  the  business  of  the  House  to 
Avhich  he  belongs,  or  in  which  he  has  duties  to  perform,  how- 
ever offensive  the  same  may  be  to  the  feelings  or  injurious  to 
the  reputation  of  another.^ 

327.  This  privilege  however  is  absolute  only  within  the 
walls  of  the  House,  or  of  such  other  places  as  committees  are 
authorized  to  occupy. ^  It  is  not  personal,  but  local.  A 
member  who  publislies  slander  or  libel  generally,  outside  of 
such  locality,  stands,  it  sQems,  on  the  same  footing  with  a 
private  individual.'^  For  example:  A  member  of  Parliament 
prints  and  circulates  generally  a  speech  delivered  by  him  in 
the  House,  containing  defamatory  language  of  the  plaintiff. 
This  is  a  breach  of  duty.* 

328.  The  same  protection  is  extended  to  persons  presenting 
petitions  to  the  Legislature,  and  with  the  same  restriction. 
The  printing  and  exhibiting  a  false  and  defamatory  petition 
to  a  committee  of  the  Legislature,  and  the  delivery  of  copies 
thereof  to  each  member  of  the  committee,  is  justifiable,  unless 
perhaps  the  petition  is  a  mere  sham,  fraudulently  put  forth 
for  the  purpose  of  defaming  an  individual.  But  a  publica- 
tion to  any  others  than  the  members  of  the  committee,  or  at 
any  rate  to  others  than  members  of  the  Legislature,  removes 
the  protection,  and  renders  the  author  liable. ° 

1  See  Ex  parte  Wason,  L.  R.  4  Q.  B.  573;  Commonwealth  i:  Bland- 
ing,  3  Pick.  304,  314;  Coffin  v.  Coffin,  4  Mass.  1,  a  very  important  case; 
Hastings  v.  Lusk,  22  Wend.  410,  417;  s.  c.  L.  C.  Torts,  121,  124; 
McGaw  V.  Hamilton,  184  Penn.  St.  108. 

2  Goffin  V.  Donnelly,  6  Q.  B.  D.  307.  See  Belo  v.  AYren,  63  Texas, 
686,  irregular  and  irresponsible  committee. 

8  See  however  Coffin  <;.  Coffin,  supra,  as  to  words  not  in  the  course 
of  business. 

*  Rex  V.  Abingdon,  1  Esp.  226 ;  Rex  r.  Creevey,  1  Maule  &  S.  273 ; 
Stockdale  v.  Hansard,  0  Ad.  &  E.  1.  As  to  private  circulation  of  speeches 
among  constituents,  see  Wason  v.  Walter,  L.  R.  4  Q.  B.  73,  95. 

s  Lake  v.  King,  1  Saund.  131  b,  where  this  is  conceded ;  Hare  v. 
Miller,  3  Leon.  138,  163.  See  Proctor  /-.  Webster,  16  Q.  B.  D.  112,  as 
to  communications  to  the  Privy  Council. 


Chap.  VII.  §  10.]  SLANDER   AND   LIBEL.  169 

329.  Absolute  privilege  extends  also  to  the  acts  and  pro- 
ceedings of  the  Executive  Department,  whether  p^.^^^  ^.^^ 

of  the  general  government  of  the  country  or  of  of  the  Exec- 
the  States,^  or,  it  seems,  of  cities. ^  "*^^®' 

330.  In  other  relations  than  those  of  the  State,  there  is 
seldom  any  cause  for  absolute  privilege;  between  man  and 
man,  outside  of  the  affairs  of  State,  the  occa-  Prima  facie 
sion  can  create  only  a  prima  facie  privilege.  The  Privilege, 
defendant  here  shows  privilege  as  before ;  but  now,  it  should 
be  noticed,  the  plaintiff:  may  in  turn  show  (actual)  malice. 
This  head  embraces  a  great  variety  of  cases ;  onl}'  the  most 
important  of  these  will  be  presented,  from  which  a  general 
rule  will  be  deduced. 

331.  Proceedings   before   church   organizations,    societies, 

clubs,  and  other  voluntary  bodies,  touching  the  objects  for 

which  they  are  formed,  may  be  mentioned  first.   „        ,. 

"^  .  .  Proceedings 

Proceedings  of  such  bodies,  for  the  discipline  of  of  voluntary 
their  members,  partake  somewhat  of  the  nature  ^°^^^^^^^- 
of  trials  in  the  courts.  Though  forming  no  part  of  the 
general  administration  of  justice,  such  proceedings,  when 
not  in  conflict  with  the  law,  are  sanctioned  b}'  the  State. 
Accordingly,  language  used  in  conducting  them  is  privi- 
leged, prima  facie,  so  far  as  it  is  pertinent  to  the  matter 
under  consideration.  For  example:  The  defendant,  while 
on  trial  before  a  church  committee  for  alleged  falsehood 
and  dishonesty  in  business,  says  of  the  plaintiff,  '  I  dis- 
charged him  for  being  dishonest,  —  for  stealing.  That  is 
the  cause  of  this  trouble.'  The  defendant  is  not  liable 
in  the  absence  of  evidence  that  he  was  actuated  by  express 
malice.^ 


1  Spalding  v.  Vilas,  164  U.  S.  483.  See  Chatterton  v.  Secretary  of 
State,  1895,  2  Q.  B.  189;  ante,  p.  31. 

-  Trebilcock  i\  Anderson,  117  ]Mich.  39;  Wachsmuth  v.  Merchants' 
Bank,  96  Mich.  427. 

3  York  V.  Pease,  2  Gray,  282;  Farnsworth  v.  Storrs,  5  Cush.  412.  See 
Holt  V.  Parsons,  23  Texas,  9.  Probably  the  language  need  not  be  legally 
relevant. 


170  LAW   OF  TORTS.  [Part  II. 

332.  The  proceedings  of  the  courts  of  justice  shoukl,  with 
some  necessary  exceptions,  be  under  the  eyes  of  the  public,  so 
Publication  of  ^^^'^^  j^^^^g^s  may  sufificicntly  feel  their  responsi- 
proceedings  of  bility.^  But  the  whole  public  cannot  attend  the 
t  e  courts.  courts,  and  it  is  proj)er  therefore  that  such  of  their 
proceedings  as  are  open  should  be  made  known  generally. 
It  is  accordingly  laid  down  that  the  publication  of  proceed- 
ings had  in  open  court,  if  sufficiently  full  to  give  a  correct 
and  just  impression  of  the  proceedings,  and  if  not  attended 
with  defamatory  comments,  is  prima  facie  privileged. ^  If 
however  the  same  should  be  so  incomplete  or  so  stated  as  to 
give  a  wrong  impression,  or,  though  full,  if  it  is  followed  by 
comments  containing  defamatory  matter,  the  privilege  would 
fail,  and  the  publisher,  editor,  and  author  would  be  liable 
for  any  defamation  thereby  spread.  For  example:  The  de- 
fendant prints  a  short  summary  of  the  facts  of  a  certain  case 
in  wdiich  the  plaintiff  has  acted  as  attorney.  The  account  of 
the  trial  states  that  the  then  defendant's  counsel  was  ex- 
tremely severe  and  amusing  at  the  expense  of  the  present 
plaintiff.  It  then  sets  out  parts  of  the  speech  of  the  defend- 
ant's counsel  which  contain  some  severe  reflections  on  the 
conduct  of  the  plaintiff  as  attorney  in  that  action.  The  de- 
fendant is  liable.^ 

333.  But  it  should  be  clearly  understood  that  the  publica- 
tion of  an  abridged  report  of  a  trial  is  privileged  if  it  is  fair 

and  accurate  in  substance,  so  as  to  convey  a  just 
ports  of  trials :  impression  of  what  took  place,  and  is  free  from 

reports  from     objectionable  comments;*  and  so  of  the  publica- 

day  to  day.  .„  ,.  •       ■,       t       •  ^  rt^-i-i 

tion  of  proceedings  m  the  Legislature.*'     It  is  laid 

down  however  that  this  privilege  does   not   extend   to  the 

publication  of  papers  in  a  cause  before  any  proceedings  have 

1  Cowley  V.  Pulsifer,  137  Mass.  392. 

2  See  Stevens  v.  Sampson,  5  Ex.  Div.  53,  as  to  reports  furnished  by- 
one  not  connected  with  the  newspaper. 

3  Flint  V.  Pike,  4  B.  &  C.  473. 

4  Turner  &  Sullivan,  6  Law  T.  n.  s.  130;  Wason  v.  Walter,  L.  R. 
4  Q.  B.  73,  87. 

^  Wason  V.  Walter,  supra.     Contra  of  matters  not  fit  for  publication. 
Steele  v.  Brannan,  L.  11.  7  C.  P.  261. 


Chap.  VII.  §  10.]  SLANDER   AND   LIBEL.  171 

been  taken  upon  them,  as  in  the  case  of  pajDers  filed  and 
published  in  vacation.^  This  would  not  be  publishing  a 
proceeding  had  in  open  court.^  Reports  from  day  to  day, 
in  the  progress  of  a  trial,  may  be  published  ;  ^  and  the  report 
of  a  judgment  alone,  especially  if  sufficient  to  give  a  just 
idea  of  the  case,  may  be  published.^ 

334.  The  objection  to  defamatory  comments  applies  equally 
well  when  they  are  put  into  the  form  of  a  heading  to  the 
report.     For  example :  The  defendant  prints  an  comments  in 
account  of  a  trial  in  which  the  plaintiff  was  in-  heading, 
volved,  heading  the  same  '  Shameful  conduct  of  an  attorney,' 
referring  to  the  plaintiff.     The  publication  is  not  privileged.^ 

335.  The  editor  or  writer  may  however  use  a  heading 
properly  indicative  of  the  nature  of  the  trial,  if  it  does  not 
amount  to  comment.  That  is,  the  subject  of  the  trial  may 
be  stated.  For  example:  The  defendant  prints  a  report  of 
a  trial  under  the  heading  '  Wilful  and  corrupt  perjury.'  But 
this  is  only  a  statement  of  the  charge  made  against  the  plain- 
tiff at  the  trial.     There  is  no  breach  of  duty  to  the  plaintiff.^ 

336.  The  privilege  appears  to  extend  in  England,  and  by 
the  better  view  in  this  country,  to  the  publication  of  ex  parte 
judicial  proceedings  ; "  it  protects  the  publication  ^^  parte 
alike  of  preliminary  and  final  proceedings  in  open  proceedings, 
court ;  and  this  though  the  tribunal  declines  to  proceed  for 
want  of  jurisdiction.^ 

1  Cowley  V.  Pulsifer,  137  Mass.  392. 

2  Id.  p.  394,  Holmes,  J. 

8  Lewis  V.  Levy,  El.  B.  &  E.  537;  Cowley  v.  Pulsifer,  137  Mass. 
892,  395. 

*  Macdougall  v.  Knight,  17  Q.  B.  Div.  G36 ;  14  App.  Cas.  194,  200. 
See  this  case  again,  25  Q.  B.  Div.  1,  denying  the  qualification  suggested 
in  the  House  of  Lords,  14  App.  Cas.  at  pp.  200,  203. 

5  Lewis  V.  Clement,  3  Barn.  &  Aid.  702. 

e  Lewis  v.  Levy,  El.  B.  &  E.  537. 

T  Usill  i^  Hales,  3  C.  P.  D.  319;  Metcalf  v.  Times  Publishing  Co., 
20  R.  I.  674,  reviewing  the  cases.  But  see  Cincinnati  Gazette  Co.  v. 
Timberlake,  10  Ohio  St.  548;  Matthews  v.  Beach,  5  Sandf.  256.  See 
Cowley  V.  Pulsifer,  137  Mass.  392;  Belo  v.  Wren,  63  Texas,  686. 

*  Usill  V.  Hales,  supra;  Lewis  v.  Levy,  supra. 


172  LAW  or  TORTS.  [PartH. 

337.  No  privilege  is  conferred,  apart  from  statute,  ujDon 
the  proprietors,  editors,  or  publishers  of  the  public  prints  for 
Newspaper  ^^^^  publication  of  defamatory  matter  uttered  in 
reports  the  course  of  public  meetings  though  held  under 
defamatofy  authority  of  law  for  public  purposes.  For  ex- 
matter,  ample :  The  defendant  prints  an  account  of  a 
public  meeting  of  commissioners  of  a  town,  the  body  acting 
under  powers  granted  by  statute ;  and  the  report  is  a  fair 
and  truthful  statement  of  what  occurred  at  the  meeting.  It 
however  contains  defamatory  language  uttered  concerning 
the  plaintiff  at  the  meeting.     The  defendant  is  liable.^ 

338.  It  does  not  indeed  make  a  case  of  privilege  that  a 
defamatory  statement  relates  to  a  matter  of  great  interest  to 

.       the  public,  even  though  the  public  should  be  at 
public  a  point  of  unusual  anxiety  on  the  subject.     For 

interest.  example  :  The  defendant  charges  tlie  plaintiff  in 

a  newspaper  with  treachery  and  bad  faith  in  regard  to  money 
received  by  him  to  obtain  the  manumission  of  a  fugitive  slave 
in  whom  there  was  great  interest  in  the  community.  The 
publication  is  not  privileged.^ 

339.  It  is  obviously  to  the  advantage  of  the  public  that 
true  accounts  of  the  proceedings  of  the  Legislature  as  well 

as   of   the   courts   should   be   placed   before   the 
publish  pro       people.     Upon  this  principle  therefore  the  pub- 

ceedings  of  lication  of  such  proceeding's  by  any  one  is  privi- 
Legislature.       ,  ,       ,  ,        ,  .^       /  ^      '^  ,, 

leged,  though   they  contain   deramatory  matter; 

though  the  privilege  of  non-official  publication,  as  in  the 
other  cases  mentioned,  will  not  cover  malicious  publications. 
Without  evidence  of  malice  however  the  protection  is  com- 
plete. For  example  :  The  defendant  publishes  a  true  report 
of  a  debate  in  Parliament,  upon  a  petition  presented  by 
the  plaintiff  for  the  impeachment  of  a  judge.  Defamatory 
statements  against  the  plaintiff  are  made  in  the  course  of 

1  Davison  v.  Duncan,  7  El.  &  B.  229. 

2  Sheckell  v.  Jackson,  10  Cush.  25 ;  Cases,  178. 


Chap.  VII.  §  10.]  SLANDEK  AND  LIBEL.  173 

the  debate,  and   these  are  published  with  the  report.     The 
defendant  is  not  liable  in  the  absence  of  malice/ 

340.  Communications  made  to  the  proper  ^  public  authori- 
ties, upon  occasions  of  seeking  redress  for  wrongs  suffered 
or  threatened,  in  which  the  public  are  concerned, 

■,.,,,  ,  1  .  •    •  .1       Communica- 

or  in  which   the  party  making  or  receiving  the  tions  asking 

communication  is  alone  concerned,  fall  within  the  *°^  redress  of 

same  kind  of  privilege,  if  believed  to  be  true  by 

the  party  seeking  redress,  unless  the  communication   itself 

or  the  facts  connected  with  it  show  malice.     For  example  : 

The  defendant  honestly  ^  charges  the  plaintiff  with  being  a 

thief,  the  charge    being   made   before  a  constable  acting  as 

such,    after   the   defendant   had   sent   for  him   to   take   the 

plaintiff  into  custody.     The  defendant  is   not  liable  in   the 

absence  of  evidence  of  actual  malice.^ 

341.  Upon  the  same  principle  honest  statements  at  public 
meetings,  as  by  a  taxpayer  and  voter  at  a  town  meeting 
held  to  consider  an  application  from  the  tax  asses-  Town 
sors  of  the  town  for  the  use  of  money  for  a  par-  meetings, 
ticular  purpose,  may  be  privileged  so  far  as  they  bear  upon 
the  matter  before  the  meeting,  though  they  be  defamatory. 
For  example  :  The  defendant,  at  a  town  meeting  held  on 
application  of  the  tax  assessors  to  consider  the  reimbursing 
the  assessors  for  expenses  incurred  in  defending  a  suit  for 
acts  done  in  their  official  capacity,  honestly  but  falsely 
charges  the  assessors  with  perjury  in  the  suit.  Being  a 
taxpayer  and  voter,  he  is  not  liable  to  any  of  the  persons 
defamed,  unless  shown  to  have  been  actuated  by  malice.^ 

342.  A  similar  protection  is  extended  to  persons  acting 
under   the  management   of   bodies   instituted   by   law,    and 

1  Wason  V.  Walter,  L.  R.  4  Q.  B.  73.  The  protection  in  this  case 
was  extended  also  to  comments  made  in  an  honest  and  fair  spirit. 

2  Hebditch  v.  Macllwaine,  1894,  2  Q.  B.  54,  C.  A. 

8  '  Honestly  '  and  '  honest '  will  now  be  used  of  belief  that  an  imputa* 
tion  is  true. 

*  Robinson  ?'.  May,  2  Smith,  3. 
5  Smith  V.  Higgins,  16  Gray,  251. 


174  LAW  OF  TORTS.  [Part  K. 

having  a  special  function  of  care  over  the  interests  of  the 
Public  bodies  P^^blic.  While  lionestly  acting  within  the  limits 
having  special  of  their  function,  they  are  prima  facie  exempt 
unctions.  fpom  liability  for  defamatory  publications  made. 
For  example :  The  defendants,  trustees  of  a  college  of 
pharmacy,  —  an  institution  incorporated  for  the  purpose, 
among  other  things,  of  cultivating  and  improving  pharmacy, 
and  of  making  known  the  best  methods  of  preparing  medi- 
cines, with  a  view  to  the  public  welfare,  — make  a  report  to 
the  proper  officer  concerning  the  importation  of  impure  and 
adulterated  drugs,  falsely  but  honestly  charging  the  plaintiff 
with  having  made  such  importations  ;  the  report  being  made 
after  investigation  caused  by  complaints  made  to  the  defend- 
ants of  the  importation  of  such  drugs.  The  defendants  are 
not  liable  unless  they  acted  with  express  malice  towards  the 
plaintiff.^ 

343.  The  use  of  the  public  prints  is  sometimes  justifiable 
to  protect  a  person  against  the  frauds  or  depredations  of  a 
Ti  f  th  private  citizen  ;  and  when  this  is  the  only  effect- 
press  for  self-  ual  mode  of  protection,  persons  are  prima  facie 
pro  ec  ion.  protected  in  adopting  it  even  against  innocent 
men.  For  example  :  The  defendant,  a  baker,  employing  ser- 
vants in  delivering  bread  in  various  towns,  inserts  in  a  news- 
paper published  in  one  of  the  towns  a  card,  stating  that  the 
plaintiff  '  having  left  my  employ,  and  taken  upon  himself 
the  privilege  of  collecting  my  bills,  this  is  to  give  notice  that 
he  has  nothing  further  to  do  with  my  business.'  The  com- . 
munication  is  honest.  It  is  privileged  in  the  absence  of 
evidence  of  actual  malice.^ 

344.  Statements  made  to  the  public  in  vindication  of  char- 
acter publicly  attacked  are  privileged,  prima  facie,  if  they  are 
Seif-vindica-  honest,  if  made  through  proper  channels.^  For 
tion.  example  :   The  defendant  publishes  a  newspaper 

1  Van  Wyck  v.  Aspinwall,  17  X.  Y.  190.  See  AUbut  v.  General 
Council  of  Medical  Education,  23  Q.  B.  Div.  400. 

2  Hatch  V.  Lane,  10.5  Mass.  394. 

«  Laughton  v.  Bishop  of  Sodor,  L.  R.  4  P.  C.  495. 


Chap.  VII.  §  10]  SLANDER   AND   LIBEL.  175 

article  containing  reflections  upon  the  plaintiff's  cliaracter, 
in  reply  to  an  article  by  the  plaintiff  assailing  the  defend- 
ant's character.  The  defendant  acts  honestly,  in  defence  of 
himself.     The  communication  is  prima  facie  privileged.^ 

345.  Indeed  it  may  not  affect  the  case  that  the  names  of 
other  men  are  drawn  into  the  controversy  and  tarnished. 
The  party  attacked  may  in  reply  falsely  criminate  others  if 
the  charges  against  them  are  honestly  made,  are  not  malicious, 
and  are  reasonably  deemed  necessary  for  self-vindication. 
And  such  reply  may  be  made  by  the  party's  agent  as  well 
as  by  himself.  For  example  :  The  defendant,  an  attorney, 
writes  and  publishes  a  letter  in  vindication  of  the  character 
of  one  of  his  clients,  in  reply  to  certain  charges  of  conspiracy 
preferred  and  published  against  the  latter.  The  defendant's 
letter  contains  defamatory  charges  against  a  third  person,  the 
plaintiff.  The  defendant  is  not  liable  if  he  made  the  charges 
in  reasonable  and  honest  vindication  of  his  client's  character, 
and  without  actual  malice,  using  terms  reasonably  warranted 
under  the  circumstances  in  which  he  wrote.^ 

346.  Communications  by  a  master,  or  late  master,  in  regard 
to  the  character  or  conduct  of  his  servant,  made  to  a  neighbor 
or   other   person  who    is  apparently  thinking  of  Master  and 
employing  the  servant,  fall  within  this  category  servant. 

of  cases.^  For  example  :  The  defendant,  having  discharged 
his  servant  the  plaintiff  for  supposed  misconduct,  and  hearing 
that  he  was  about  to  be  engaged  by  a  neighbor,  writes  a 
letter  to  his  neighbor,  informing  him  that  he  has  discharged 
the  plaintiff  for  dishonesty,  and  that  he  cannot  recommend 
him ;  the  charge  of  dishonesty  being  false,  but  believed  by 

1  O'Donoghue  v.  Hussey,  Ir.  R.  5  C.  L.  124,  Ex.  Ch. 

-  See  Regina  v.  Veley,  4  Fost.  &  F.  1117;  Seaman  v.  Netherclift, 
2  C.  P.  Div.  53,  ante,  p.  106;  Wason  v.  Walter,  L.  R.  4  Q.  B.  73,  ante, 
p.  173.  These  three  cases  taken  properly  together  justify  the  example, 
the  facts  in  which  vary  from  Regina  v.  Veley,  in  making  the  imputation 
relate  to  a  third  person. 

8  Billings  V.  Fairbanks,  139  Mass.  66;  Hollenbeck  v.  Ristine,  105 
Iowa,  488;  Pattisou  v.  Jones,  8  B.  &  C.  578. 


176  LAW  OF  TORTS.  [Part  II. 

the  defendant  to  be  true.     The  defendant  has  a  prima  facie 
right  to  make  the  statement.^ 

347.  The  same  is  true  where  there  exists  a  very  near  rela- 
tionship, or  a  pecuniary  connection  of  confidence,  between 
Near  rela-  the  parties  ;  as  in  the  case  of  a  parent  admonish- 
tionship.  j^j^g  }j^g  daughter  against  the  attentions  of  a  par- 
ticular person,  who  is  falsely  charged  with  the  commission  of 
a  crime  ;  or  of  a  partner  advising  his  copartner  to  have  no 
partnership  dealing  with  another,  on  the  false  ground,  e.  g., 
that  he  is  a  thief. 

348.  A  confidential  relation  by  pecuniary  connection  is,  for 
the  purposes  of  this  protection,  much  wider  than  might  be 
Confidential  supposed  from  the  case  of  partners  last  men- 
relation,  tioned.  A  confidential  relation,  within  the  scope 
of  the  protection  to  voluntary  communications,  (probably) 
arises  wherever  a  continuous  or  temporary  trust  is  reposed  in 
the  skill  or  integrity  of  another,  or  the  property  or  pecuniary 
interest,  in  whole  or  in  part,  or  the  bodily  custody,  of  one 
person,  is  placed  in  charge  of  another.  ^  Besides  the  cases 
above  stated,  this  definition  will  cover  communications  made 
by  an  attorney  to  his  client  concerning  third  persons  with 
whom  the  client  is,  or  is  about  to  be,  engaged  in  business 
transactions ;  '^  communications  made  to  an  auctioneer  of  prop- 
erty concerning  the  sale  by  persons  interested  in  the  prop- 
erty ;  *  communications  of  landlords  to  their  tenants  imputing 
immoral  conduct  to  some  of  the  inmates  of  the  premises;^ 
and  many  other  cases  of  a  like  nature. 

349.  In  most  of  the  foregoing  cases,  it  will  be  noticed,  the 
communication  was  volunteered,  and  this  of  necessity;  if 
Voiuntarv  i^if^de  at  all,  it  must  have  been  volunteered.  That 
commuuica-      fact  accordingly  has  no  bearing  upon  the  question 

of  liability.     Indeed  the  most  that  can  be  said  of 

^  Pattison  v.  Jones,  supra. 

2  See  Bigelow,  Fraud,  i.  262. 

8  See  Davis  v.  Reeves,  5  Ir.  C.  L.  79. 

*  Blackham  v.  Pugh,  2  C.  B.  611. 

»  Knight  V.  Gibbs,  3  Nev.  &  M.  467. 


tion. 


Chap.  VII.  §  10.]  SLANDER   AND   LIBEL.  177 

the  fact  that  a  communication  was  volunteered,  in  a  case  of 
privilege,  is  that  it  may  sometimes  be  taken,  along  with 
other  facts,  as  evidence  of  malice.^  Alone  however  it  would 
probably  have  no  significance. 

350.  On  the  other  hand,   a  communication   is  not  neces- 
sarily privileged  because  of  being  made  upon  request,  though 
very  often  it  is  privileged.     If  it  should  be  un-  „ 
necessarily  defamatory  under  the  circumstances,  tion  on  re- 
the    privilege  would  be  lost.     Such    fact  would  1"®^'- 
indeed  show  that  the  writer  or  speaker  was  actuated  by  mal- 
ice, and  would  thus  de&troy  the  protection  which  may  have 
been  available  to  the  party,  and  restore  to  the  plaintiff  his 
right  of  redress.  2 

351.  Again,  a  communication  made  upon  request  is  not 
protected  unless  the  request  come  from  a  proper  person,  or 
at  least  from  one  whom  the  defendant  has  reason  to  suppose 
a  proper  person.  If  the  defendant  know,  or  have  good  reason 
to  know,  that  the  party  making  the  inquiry  has  no  interest 
in  the  matter  in  question  other  than  that  of  curiosity,  the 
defendant  manifestly  is  not  justified  in  making  the  conununi- 
cation.  Even  the  near  relatives  of  a  person  interested  in  the 
subject  of  the  communication  cannot  by  request  afford  pro- 
tection to  every  one  to  publish  defamation  of  another.  For 
example:  The  defendant,  formerly  but  not  at  present  jias- 
tor  of  a  lady,  writes  a  letter  to  the  lady,  on  request  of  her 
parents,  warning  her  against  receiving  attention  from  a  cer- 
tain person,  the  letter  containing  false  and  defamatory  accu- 
sations against  him.     The  communication  is  not  privileged.^ 

352.  Apart  from  cases  of  self-vindication,^  the  subject  of 
prima  facie  privilege  may  be  summed  up  by  the  following 

1  See  Pattison  v.  Jones,  8  B.  &  C.  578,  584,  Bay  ley,  J. 

2  Fryer  v.  Kinnersley,  15  C.  B.  n.  s.  42'2. 

8  Joannes  v.  Bennett,  5  Allen,  169.  Perhaps  the  communication 
would  have  been  privileged  had  it  come  from  the  lady's  present  pastor ; 
and  it  clearly  would  have  been  protected  had  it  been  written  on  request 
of  the  lady  herself. 

*  In  a  case  of  self-vindication,  the  public,  before  which  the  accused 
seeks  to  vindicate  himself,  may  have  no  duty  or  interest  in  the  matter. 

12 


178  LAAV   OF   TORTS.  [Part  IL 

general  proposition:  A  communication  believed  to  be  true, 

_        ,.  and  made  bona  fide  upon  any  subiect-matter  in 

Generaliza-  ^  j  j 

tion  of  the  which  the  party  communicating  has  an  interest,  or 
subject.  ^^^  reference  to  which  he  has  a  legal  or  moral  duty 

to  perform,  is  privileged,  if  made  to  a  person  having  a  corre- 
sponding interest  or  duty,  although  it  contains  defamatory 
matter,  which,  without  such  privilege,  would  be  actionable.^ 

353.  Prima  facie  privilege  accordingly  rests  upon  duty  or 
interest.     It  is  then  a  matter  of  motive ;  to  make  the  occa- 
sion (prima  facie)  privileged,  one  must  have  been 

fade^privi-"^  led  —  movcd  —  by  duty  or  interest.  That  is  the 
lege,  duty,  or  test  to  which  every  case  of  the  kind  should  be 
brought;  if  the  motive  of  the  defendant  was  not 
duty  or  interest,  —  if  for  instance  it  was  malice,  —  there  is  no 
ground  for  the  privilege.  To  put  the  case  in  another  waj^,  if 
the  defendant  bring  forward  facts  which  show  the  existence 
of  duty  or  interest,  the  question  still  is,  whether  that  was  in 
fact  the  motive  which  governed  his  conduct  in  the  publication 
in  question. 

354.  No  more  however  is  required  of  the  defendant  than 

evidence  that  he  was  acting  from  duty  or  interest;  it  is  not 

Belief  of  de-     necessary  for  him  to  go  further  and  prove  that  he 

fendants  mak-  believed  what  he  said  to  be  true.^     That  will  be 

ing  report  in  ,  •  i      i  i    •      •  /v     i 

course  of  presumed  until  the  plaintiti  shows  the  contrary, 

^^^y-  or  proves  malice,  or  other  facts  inconsistent  with 

the  alleged  privilege.     Indeed  where  the  defendant  is  simply 

making  report  to  a  superior  of  what  his  duty  requires  him  to 

report,  such  as  an  accusation  made  by  another  against  the 

plaintiff,  it  cannot  be  material  whether  the  defendant  believes 

the  accusation  true  or  not.     Enough  that  in  good  faith  he 

reports  it,  as  required,  to  his  superior. -^     But  apart  from  such 

1  Harrison  v.  Bush,  5  El.  &  B.  344  ;  Gassett  v.  Gilbert,  6  Gray,  94 ; 
.Joannes  v.  Bennett,  5  Allen,  IHfJ  ;  Sullivan  v.  Stratham  Co.,  152  Mo.  268. 

2  Jenoure  v.  Delmege,  1S91,  A.  C.  73,  Privy  Council.  But  see  Tootli- 
aker  v.  Conant,  91  Maine,  438;  McNelly  v.  Burleigh,  id.  22.  See  also 
Hellstern  v.  Katzer,  103  Wis.  391. 

3  Jenoure  v.  Delmege,  supra. 


Chap.  VII.  §  10.]  SLANDER   AND  LIBEL.  179 

cases,  — if  the  defendant  himself  makes  the  accusation,  — his 
belief  in  the  truth  of  the  accusation  is  relevant.  He  will 
indeed  be  presumed  to  believe  it,  but  if  the  plaintiff  shows 
that  he  does  not,  or  otherwise  proves  malice,  or  any  other  fact 
inconsistent  with  the  supposed  privilege,  the  plaintiff  will  be 
entitled  to  recover.^ 

355.  The  motive  of  interest  or  duty  must,  as  the  foregoing 

implies,  be  single ;  a  mixed  motive,  of  interest  or  duty  and 

malice    ("or   other   fact),  would   be   fatal   to   the  „.    ,  . 

^  .  .  ,  Singleness  of 

plaintiff.^  It  is  always  laid  down  to  be  sufficient  motive :  moral 
for  the  plaintiff  to  prove  that  the  defendant  acted  ^  ^' 
maliciously.  As  for  duty,  that  may  be  moral  as  well  as  legal; 
as  for  interest,  that  must,  it  seems,  consist  in  legal  right  or 
in  something  of  the  nature  of  legal  right. ^  The  duty  or 
interest  however  must,  it  seems,  be  real;  it  is  not  enough 
that  the  defendant  supposed  he  had  a  duty  or  an  interest,  if 
he  had  not.^ 

356.  We  have  here  the  noticeable  fact  that  malice  as  a 
motive  has  a  true  place  in  the  law,^  though  a  secondary  one, 

1  Jenoure  v.  Delmege,  1891,  A.  C.  73;  Pattison  v.  Jones,  8  B.  &  C. 
578 ;  Dawkins  v.  Paulet,  L.  R.  5  Q.  B.  94,  102 ;  Clark  v.  Molyneux, 
3  Q.  B.  Div.  237.  See  Clark  v.  Thompson,  90  Maine,  298 ;  O'Rourke 
V.  Sun  Publishing  Co.,  89  Maine,  310. 

'^  Such  is  the  effect  of  Jenoure  v.  Delmege,  supra.  But  qu.  whether 
a  person  should  lose  his  privilege  when  reporting  a  defamatory  charge 
which  he  was  legally  bound  to  report,  because  he  does  not  believe  the 
charge  to  be  true  or  otherwise  performs  his  duty  maliciously? 

'^  Ante,  p.  11. 

*  Hebditch  v.  Macllwaine,  1894,  2  Q.  B.  54,  C.  A.  But  see  Jenoure 
V.  Delmege,  1891,  A.  C.  73,  where  the  Privy  Council  took  it  for  granted 
that  belief  was  enough ;  perhaps  confusing  privilege  itself  with  the 
subject-matter  of  the  privilege. 

^  We  have  seen  that  privilege  in  one  form  or  another  is  a  general 
principle  of  law  (ante,  pp.  8-11,  19-21,  and  note);  accordingly  malice,  in 
the  sense  of  a  motive,  is  in  sound  theory  available  generally,  and  not 
merely  in  slander  and  libel,  to  overturn  the  allegation  or  the  presump- 
tion of  privilege.  See  ante,  pp.  19-21.  Where  a  man  justifies  by  a 
motive,  as  duty  or  interest,  it  may  certainly  be  shown  that  he  was  not 
governed  by  that  but  by  another  motive. 


180  LA\Y   OF   TORTS.  [Part  II. 

—  not  in  making  a  prima  facie  cause  of  action.^  Indeed  it 
Place  of  is  laid  down  that  the  malice  required,  when  the 

malice.  question  of  privilege  turns  on  malice,  is  malice  in 

that  very  sense,  —  the  popular  idea  of  malice,  as  an  evil 
motive.^  Accordingly,  external  manifestation,  such  as  the 
common  case  of  excessive  zeal,  is  to  be  considered  as 
evidence  of  a  malicious  motive,  and  not  necessarily  as  mal- 
ice absolute;  the  effect  of  it  being  capable  of  being  taken 
away  by  evidence  consistent  with  zeal  but  inconsistent  with 
malice. 

357.  It  follows  from  what  has  been  said,  that  no  privilege 
is  afforded  the  mere  repetition  of  defamation ;  and  this  is  true 

by  the  weight  of  authority,  though  the  party 
repeating  it  give  the  name  of  the  person  from 
whom  he  received  it.  The  rej^etition  of  the  language  is 
generally  deemed  actionable  to  the  same  extent,  and  doubt- 
less with  the  same  qualifications,  as  is  the  original  pub- 
lication.3  For  example:  The  defendant  says  to  a  third 
person  concerning  the  plaintiff,  '  You  have  heard  of  the 
rumor  of  his  failure, '  —  merely  repeating  a  current  rumor 
that  had  come  to  his  ears  that  the  plaintiff  had  failed. 
Tlie  defendant  is  liable  if  there  was  no  such  relation  be- 
tween him  and  the  party  to  whom  he  made  the  communi- 
cation as  would  cause  the  latter  to  expect  a  communication 
on  such  matters.'^ 

§  11.    Of  Criticism. 

358.  Criticism  cannot  be  defamation,  unless  it  strikes  at 
personal  character.     It  is  protected  therefore,  not  because  it 

1  Ante,  pp.  18-21. 

2  Nevill  V.  Fine  Arts  Ins.  Co.,  1895,  2  Q.  B.  156,  169,  Lord  Esher. 

3  De  Crespigny  v.  Wellesley,  5  Bing.  392;  s.  c.  L.  C.  Torts,  151; 
Folwell  I'.  Providence  Journal  Co.,  19  R.  I.  551;  Stevens  r.  Hartviell, 
11  Met.  542;  Sans  v.  Joerris,  14  Wis.  663;  Inman  r.  Foster,  8  Wend.  602. 
Contra,  Haynes  v.  Leland,  29  Maine,  233.  See  also  Jarnigan  v.  Fleming, 
43  Miss.  710 ;  Northampton's  Case,  12  Coke,  134. 

*  Watkin  v.  Hall,  L.  R.  3  Q.  B.  396. 


Chap.  VII.  §  11.]  SLANDER   AND   LIBEL.  181 

is  privileged,  but  because  it  is  not  defamation,^  or  rather  be- 
cause it  is  not  wrongful.  This  broader  ground  j^^^^^^  ^^^  j, 
is  certainly  the  true  one;  speaking  in  technical  from  defama- 
but  significant  language,  it  is  not  necessary  to  ^°"' 
'  justify '  criticism.  However  severe  it  may  be,  however 
unjust  in  the  opinion  of  men  capable  of  judging,  so  long,  in 
England  at  least,  as  the  critic  confines  himself  to  what  is  there 
called  '  fair  criticism  '  of  another's  works,  the  act  cannot  be 
treated  as  a  breach  of  duty.  But  if  the  critic  turn  aside 
from  the  proper  purpose  of  criticism,  and  hold  up  one's  char- 
acter to  ridicule,  he  becomes  liable. ^ 

359.  The  criticism  of  works  of  art,  whether  painting, 
sculpture,  monument,  or  architecture,  falls  of  course  within 
the  rule.  For  example :  The  defendant  says  of  a  picture  of 
the  plaintiff,  placed  on  exhibition,  '  It  is  a  mere  daub. '  The 
defendant,  if  fair  in  his  criticism, ^  cannot  be  held  liable  to  an 
action  for  defamation,  however  unjust  the  criticism.* 

360.  The  conduct  too  of  public  men  amenable  to  the  public 
only,  and  of  candidates  for  public  office,  is  a  matter  proper 

1  Merivale  v.  Carson,  20  Q.  B.  Div.  27.5 ;  Campbell  v.  Si:)ottiswood, 
3  Best  &  S.  769,  780.  This  overrules  Ilenwood  v.  Harrison,  L.  R.  7  C.  P. 
606,  626,  where,  as  by  some  of  our  courts,  criticism  is  treated  as  priv- 
ileged. Criticism  is  privileged  only  in  the  improper  sense  that  the  act  iu 
itself  is  lawful,  not  that  it  is  made  upon  an  occasion  which  protects  it. 
Football,  every  lawful  act,  resulting  in  harm,  is  '  privileged  '  in  the  same 
way. 

2  Id.  ;  Carr  c.  Hood,  1  Campb.  35.5,  note;  Strauss  v.  Francis,  4  Fost. 
&  F.  939  and  1107.     See  s.  c.  L.  R.  1  Q   B.  379. 

8  See  Merivale  v.  Carson,  20  Q.  B.  Div.  275,  280,  283,  as  to  '  fair 
criticism.'  In  Fingland  the  question  is  directly  put  to  the  jury  whether 
the  criticism  is  '  fair ; '  which  is  stated  to  mean  whether,  in  their  opin- 
ion, the  criticism  goes  beyond  what  any  fair  man,  however  prejudiced  or 
strong  his  opinion  may  be,  might  express.  Merivale  v.  Carson,  at  p.  280. 
See  also  id.  at  p.  283.     Cases,  144,  148,  149. 

*  Thompson  c.  Shackell,  Moody  &  M.  187.  See  Whistler  v.  Ruskin, 
London  Times,  Nov.  26,  27,  1878  (unfair  criticism)  ;  Merivale  v.  Carson, 
supra ;  Gott  v.  Pulsifer,  122  Mass.  235.  The  recent  case  of  Dooling  v. 
Budget  Pub.  Co.,  144  IMass.  258,  turned  upon  a  distinction  between  criti- 
cism of  the  plaintiff  in  his  business  of  caterer  and  slander  of  title.  The 
distinction  is,  that  if  the  comment,  being  upon  property,  is  true  it  is 
criticism,  if  false  it  is  slander  of  title. 


182  LAW   OF  TORTS.  [Part  II. 

for  public  discussion.  It  may  be  made  the  subject  of  hos- 
c  d  t  f  ^^^^  criticism  and  animadversion,  so  long  as  the 
public  men :  writer  keeps  within  the  bounds  of  an  honest  inten- 
a  se  c  arges.  ^-^^^^  ^^  discharge  a  duty  to  the  public,  and  does 
not  make  the  occasion  a  mere  cover  for  promulgating  false 
and  defamatory  allegations.  The  question  in  such  cases 
therefore  is,  whether  the  author  of  the  statements  complained 
of  has  transgressed  the  bounds  within  which  comments  upon 
the  character  or  conduct  of  a  public  man  should  be  confined ; 
—  whether,  instead  of  fair  comment,  the  occasion  was  made 
an  opportunity  for  gratifjdng  personal  vindictiveness  and 
hostility,^  as  by  making  false  charges  of  disgraceful  acts.^ 
In  a  word,  fair  criticism  or  comment  upon  the  real  acts  of 
a  public  man  is  one  thing;  it  is  '  quite  another  to  assert  that 
he  has  been  guilty  of  particular  acts  of  misconduct. '  ^  Criti- 
cism of  public  men  should  be  limited  to  matters  touching 
their  qualifications  for  the  performance  of  the  duties  pertain- 
ing to  the  position  which  they  hold  or  seek.* 

361.  If  however  an  officer,  or  an  office  sought,  be  not  sub- 
ject to  direct  control  by  the  public,  —  if  the  same  be  subor- 
dinate to  the  authority  of  some  one  having  a 
subject  di-  power  of  removal  over  the  incumbent,  —  then 
[rcontr  f "'''  (P^ob^^^y)  there  exists  no  right  to  animadvert 
upon  the  conduct  of  such  subordinate  officer  or 
candidate  through  public  channels.  For  in  such  a  case  the 
question  appears  to  be  one  of  capacity  or  of  fitness  for  a  par- 

1  Campbell  v.  Spottiswoode,  3  Best  &  S.  769,  776;  IMevivale  v.  Carson, 
20  Q.  B.  Div.   275,  283. 

^  Davis  V.  Shepstone,  11  App.  Cas.  187. 

3  Id.  at  p.  190;  Austin  v.  Hyndman,  119  INIich.  615;  Wilcox  v. 
Moore,  69  Minn.  49;  Martin  v.  Paine,  id.  482;  Wallace  v.  Jameson,  179 
Penn.  St.  98. 

4  Our  courts  differ  however,  or  appear  to  differ,  as  to  how  far  criti- 
cism of  public  men  may  go.  See  on  the  one  hand  Hamilton  v.  Eno, 
81  N".  Y.  116  ;  Root  v.  King,  7  Cowen,  613;  s.  c.  4  Wend.  113;  Sweeney 
V.  Baker,  13  AV.  Va.  158  ;  Curtis  v.  Mussey,  6  Gray,  261.  On  the  other 
hand  see  Palmer  v.  Concord,  48  N.  H.  211  ;  Mott  v.  Dawson,  46  Iowa, 
533.  See  also  Bailey  v.  Kalamazoo  Pub.  Co.,  40  Midi.  251.  But  there 
would  probably  be  no  dispute  about  the  proposition  of  the  text. 


Chap.  VII.  §  11.]  SLANDER   AND   LIBEL.  183 

ticular  position.  Though  engaged  in  business  of  the  public, 
the  officer  is  not  a  '  public  man  '  but  a  servant.  The  proper 
course  to  pursue  in  case  of  supposed  incapacity  or  unfitness 
of  the  party  for  the  position  would  be  to  state  the  case  to  the 
superior  officer  alone,  and  call  upon  him  to  act  accordingly.^ 

362.  It  must  be  understood  that  the  law  of  slander  and 
libel  applies  only  to  defamation  in  pais ;  that  is,  to  defamatory 
charges  not  prosecuted  in  a  court  of  justice.  If  Limits  of  law 
the  defamation  consist  of  an  accusation  prosecuted  of  defamation, 
in  court,  the  accused  must  seek  his  redress  by  an  action  for 
a  malicious  prosecution,  in  regard  to  which  the  right  to  re- 
cover depends,  as  has  been  seen,  upon  quite  different  rules 
of  law.^ 

1  Compare  Odgers,  223,  224. 

2  See  chapter  iii. 


CHAPTER  VIII. 

ASSAULT  AND   BATTERY. 

Statement  of  the  duty.  A  owes  to  B  the  duty  not  (1)  to 
attempt  with  force  to  do  hurt  to  his  person,  within  reach ;  or 
(2)  to  hit  or  touch  him  intentionally,  or  recklessly  as  in 
rudeness,  or  in  the  commission  of  any  trespass  or  crime. 

There  is  so  much  in  common  in  the  law  of  the  two  wrongs 
of  assault  and  battery,  and  the  two  are  so  often  coincident, 
that  the  terms  are  frequently  used  without  discrimination. 
'  Assault '  is  constantly  used  in  the  books  of  cases  of  contact, 
making  it  include  '  battery.'  ^  But  assault  without  contact  is 
a  wrong  equally  with  battery;  and  it  will  be  convenient  and 
advisable  to  consider  the  two  subjects  separately,  however 
similar  the  law  in  regard  to  them. 

§  1.    Of  Assault  (without  Contact)  :  What  must 

BE  Proved,  etc. 

363.    An  assault  (without  contact)  is  an  attempt,  real  or 
apparent,  to  do  hurt  to  another's  person,  within  reach.     It 
.  .  is  an  attempt  to  do  bodily  harm,  stopping  short  of 

actual  execution.^  To  prove  such  an  attempt 
entitles  the  plaintiff,  presumptively,  to  recover.  If  the  at- 
tempt be  carried  out  by  physical  contact,  the  act  becomes 
a  battery;  but  the  act  is  equally  unlawful  and  actionable 
when  it  stops  with  a  mere  attempt  to  inflict  hurt.  It  is  not 
alone  a  blow  that,  because  of  unpermitted  contact  with  the 
person,  is  unlawful.     The  sensibility  to  danger  may  be  in- 

^  See  the  proposed  definition  iu  the  English  draft  Criminal  Code  of 
1879 :  Pollock,  Torts,  192,  2d  ed. 

2  Words  are  no  assault  ;  but  they  may  be  a  menace  and  so  actionable, 
with  proof  of  damage.     L.  C.  Torts,  225-227. 


Chap.  VIII.  §  1.]  ASSAULT   AND   BATTERY.  185 

tentionally  shocked;  and  feelings  so  affected  are  within  the 
protection  of  the  law  quite  as  much  as  the  feeling  produced 
by  blows.  It  is  actionable  for  A  to  shake  his  list  in  the 
face  of  B.^ 

364.  In  ordinary  cases  of  assault,  the  question  whether  the 
defendant  actually  intended  to  do  the  bodily  harm  cannot,  as 
the  definition  implies,  enter  into  the  case.^  If  intention: 
reasonable  fear  of  present  bodily  harm  has  been  ^^^'^• 
caused  by  the  threatening  attitude,  the  effect  of  an  assault 
has  been  produced ;  and  not  even  a  disclaimer  by  the  wrong- 
doer coincident  wdth  his  act  could,  it  seems,  prevent  liability. 
One  may  well  complain  of  a  man  who  points  a  pistol  at  one, 
though  the  man  truly  declare  that  he  does  not  intend  to 
shoot ;  ^  for  the  ordinary  effect  of  an  assault,  the  intended 
putting  one  in  feai\  is  produced.^ 

365.  But  it  may  appear  in  a  particular  case  that  an  ex- 
pressed purpose,  or  want  of  purpose,  is  a  determining  fact  in 
solving  a  doubt;  that  is,  it  may  be  such  a  part  of  the  act  in 
question  as  to  turn  the  scales  in  deciding  whether  an  assault 
has   been    committed.     A  denial  of   present  purpose   to  do 

^  Bacon's  Abr.  '  Assault  and  Battery,'  A. 

'•^  But  an  assault  cannot,  it  seems,  be  committed  by  negligence,  so  as 
to  be  actionable  without  proof  of  special  damage.  Compare  Spade  v. 
Lynn  R.  Co.,  168  Mass.  285,  290 ;  s.  c.  172  Mass.  488.  Note  the  differ- 
ence accordingly  between  intended  harm  by  attempt,  and  harm  due  to 
negligence.  The  former  would  instinctively  call  for  physical  redress; 
hence  it  is  actionable  per  se.     Ante,  pp.  27,  28. 

8  See  Reg.  v.  St.  George,  9  Car.  &  P.  483,  493,  Parke,  B.;  Bacon's 
Abr.  '  Assault  and  Battery,'  A;  1  Hawkins,  P.  C.  llO;  Pollock,  Torts, 
193,  2d  ed.,  doubting  Blake  v.  Barnard,  9  Car.  &  P.  626,  628,  and  Reg. 
V.  James,  1  C.  &  K.  530.  Reg.  v.  St.  George,  ut  supra,  '  would  almost 
certainly  be  followed  at  this  day.'  Pollock,  Torts,  193,  note,  2ded.  But 
see  Reg.  v.  Duckworth,  1892,  2  Q.  B.  S3. 

*  It  may  not  lie  necessary  however  to  an  assault  that  this  effect 
should  be  produced.  A  person  assaulted  may  be  entirely  fearless,  feel- 
ing sure  that  the  blow  will  not  fall.  Again,  one  may  probably  be 
assaulted  in  the  dark  without  knowing  it.  But  the  putting  in  fear  is  the 
ordinary  effect,  and  what  might  well  put  in  fear  is  probably  a  test.  Intent 
to  harm  is  unnecessary ;  intent  to  put  in  fear  is  necessary. 


186  LAW  OF  TORTS.  [Part  II. 

harm,  or  any  language  indicating  a  want  of  such  purpose, 
may  serve,  under  the  circumstances,  to  prevent  tlie  excite- 
ment of  any  reasonable  fear  of  present  bodily  harm.  If  then 
it  appear  that  the  supposed  wrong  was  committed  in  such  a 
manner  that  the  plaintiff  must  have  known  that  no  present 
violence  was  intended,  the  act  is  not  an  assault.  For  exam- 
ple: The  defendant,  on  drill  as  a  soldier,  putting  his  hand 
upon  his  sword,  says  to  the  plaintiff,  '  If  it  was  not  drill-time, 
I  would  not  take  such  language  from  you.'  This  is  not  an 
assault,  since  the  language  used,  under  the  circumstances, 
shows  that  there  was  no  attempt,  real  or  apparent,  to  do 
violence.^ 

366.  If  however  the  paintiff  has  reason  to  believe,  from 
the  defendant's  hostile  attitude,  that  harm  was  intended, 
there  is  an  assault,  whether  the  defendant  did  or  did  not 
intend  harm.  So  at  least  it  is  held  for  the  purpose  of  civil 
redress.  For  example :  The  defendant  in  an  angry  manner 
points  an  unloaded  gun  at  the  plaintiff,  and  snaps  it,  with 
the  apparent  purpose  of  shooting.  The  gun  is  known  by  the 
defendant  to  be  unloaded;  but  the  plaintiff  does  not  know 
the  fact,  and  has  no  reason  to  suppose  that  it  is  not  loaded. 
The  defendant  is  liable  for  an  assault,  though  he  could  not 
have  intended  to  shoot  the  plaintiff. ^ 

367.  The  parties  must  generally  have  been  within  reach  of 
each  other,  not  necessarily  within  arm's  reach,  for  an  assault 
Parties  must  ^^^^Y  ^®  committed  (as  already  appears)  by  means 
be  within  of  a  weapon  or  missile ;  and  in  such  a  case  it  is 
other :  excep-  oJ^ly  necessary  that  the  plaintiff  should  have  been 
tions.  within  reach  of  the  projectile.^  And  even  when 
the  alleged  assault  is  committed  with  the  fist,  it  is  not  neces- 
sary that  the  plaintiff  should  have  been  within  arm's  reach 
of  the  defendant,  provided  the  defendant  was  advancing  to 
strike  the  plaintiff,  and  was  restrained  by  others  from  carry- 
ing out  his  purpose  when  almost  within  reach  of  the  plaintiff. 

1  See  Tuberville  v.  Savage,  1  Mod.  3. 

2  Beach  v.  Hancock,  27  X.  H.  223. 

«  Tarver  v.  State,  43  Ala.  354 ;  State  v.  Taylor,  20  Kans.  643. 


Chap.  VIII.  §  2.]  ASSAULT  AND   BATTERY.  187 

For  example :  The  defendant  advances  toward  the  plaintiff  in 
an  angry  manner,  with  clenched  list,  saying  that  he  will  pull 
the  plaintiff  out  of  his  chair,  but  is  arrested  by  a  person  sit- 
ting next  to  the  plaintiff  between  him  and  the  defendant. 
The  act  is  an  assault,  though  the  defendant  was  not  near 
enough  to  strike  the  plaintiff.^ 

368.  In  like  manner,  if  the  defendant  should  cause  the 
plaintiff  to  flee  in  order  to  escape  violence,  he  may  be  guilty 
of  an  assault,  though  he  was  at  no  time  within  reach  of  the 
plaintiff;  it  is  enough  that  flight  or  concealment  becomes 
necessary  to  escape  the  threatened  evil.  For  examj)le :  The 
defendant  on  horseback  rides  at  a  quick  pace  after  the  j)lain- 
tiff,  then  walking  along  a  foot-path.  The  plaintiff  runs 
away,  and  escapes  into  a  garden;  at  the  gate  of  which  the 
defendant  stops  on  his  horse,  shaking  his  whip  at  the  plain- 
tiff, now  beyond  danger.     This  is  an  assault.  ^ 

369.  It  will  be  observed,  from  the  statement  of  the  duty 
which  governs  this  branch  of  the  law,  that  a  mere  assault  is 
a  civil  offence ;  and  hence  the  person  assaulted  Damage  not 
has  a  right  of  action,  though  he  may  not  have  necessary, 
suffered  any  loss  or  detriment  from  the  offence.  In  such  a 
case  however,  unless  the  assault  was  outrageous,  he  could 
(probably)  recover  only  nominal  damages.^ 

§  2.    Of  Batteries:  What  must  be  Proved,  etc. 

370.  A  battery  consists  in  the  unpermitted  application  of 

force  by  one  man  to  the  person  of  another.     Proof  of  such 

fact  is  enough  to  make  a  prima   facie  case.     A         „     . 
,  1         ,-  -IT-         ■  ^    t  1      p  Deflnition. 

battery  therefore  is  mainly  distinguishable  from 

an  assault  in  the  fact  that  physical  contact  is  necessary  to 

accomplish  it.     But,  as  the  definition  indicates,  this  contact 

need  not  be  effected  by  a  blow ;  any  forcible  contact  may  be 

sufficient.     For  example :  The  defendant,  an  overseer  of  the 

1  Stephens  v.  Myers,  4  Car.  &  P.  349 ;  s.  c  L.  C.  Torts,  217. 

2  Mortin  i'.  Shoppee,  3  Car.  &  P.  373. 

8  The  damages  recovered  in  Stephens  v.  Myers,  supra,  were  one 
shilling. 


188  LAW   OF  TORTS.  [Part  IL 

poor,  cuts  off  the  hair  of  the  plaintiff,  an  inmate  in  the  poor- 
house,  contrary  to  the  plaintiff's  will,  and  without  authority 
of  law.  This  is  a  battery,  and  the  defendant  is  liable  in 
damages.^  Again:  The  defendant,  in  passing  through  a 
crowded  hall,  pushes  his  way  in  a  rude  manner  against  the 
plaintiff.     This  is  also  a  battery. ^ 

371.  It  is  not  necessary  that  the  defendant  should  come  in 
contact  with  the  plaintiff's  body.     It  is  sufficient  if  the  blow 

or  touch  come  upon  the  plaintiff's  clothing.     For 
example:   The  defendant,  in  anger  or  rudeness, 

knocks  off  the  plaintiff's  hat.     This  is  enough  to  constitute  a 

battery.  2 

372.  Indeed  it  is  not  necessary  that  the  plaintiff's  body  or 
clothing  be  touched.  To  knock  a  thing  out  of  the  plaintiff's 
hands,  such  as  a  staff  or  cane,  w^ould  clearly  be  a  battery; 
and  the  same  would  be  true  of  the  striking  a  thing  upon 
which  he  is  resting  for  support,  at  least  if  this  cause  to  the 
plaintiff  a  fall  or  concussion.  For  example :  The  defendant 
strikes  or  kicks  a  horse  upon  which  the  plaintiff  is  riding,  or 
a  horse  hitched  to  a  wagon  in  which  the  plaintiff  is  riding. 
This  is  a  battery.*  Again:  The  defendant  drives  a  vehicle 
against  the  plaintiff's  carriage,  throwing  the  plaintiff  from  his 
seat.  This  also  is  a  battery.^  Again:  The  defendant  runs 
against  and  overturns  a  chair  in  which  the  plaintiff  is  sitting. 
This  too  is  a  battery.^ 

373.  It  appears  from  the  foregoing  examples  that  it  is  not 
necessary  to  constitute  a  battery  that   the  touch  or  blow  or 

1  Forde  v.  Skinner,  4  Car.  &  P.  239. 

2  Cole  V.  Turner,  6  Mod.  149  ;  s.  c.  L.  C.  Torts,  218. 

8  Mr.  Addison  gives  this  as  an  example  of  a  battery,  ^vithout  citing 
authority  ;  but  there  can  be  no  doubt  of  its  correctness.  Addison,  Torts, 
571  (4th  ed.). 

*  Clark  V.  Downing,  55  Vt.  259;  Dodwell  i:  Burford,  1  Mod.  24. 
Probably  it  would  not  be  necessary  that  the  plaintiff  should  be  thrown 
from  the  horse  or  thrown  against  anything. 

5  Hopper  V.  Reeve,  7  Taunt.  698. 

*  Id.  It  was  held  immaterial  in  this  case  whether  the  chair  or  car- 
riage belonged  to  the  plaintiff  or  not. 


Chap.  VIII.  §  2.]  ASSAULT   AND   BATTEEY.  189 

other  contact  should  come  directly  from  the  defendant's  per- 
son. Indeed  a  battery  may  be  committed  at  any  Battery  from 
distance  between  the  parties  if  only  some  violence  ^  distance. 
be  done  to  the  plaintiff's  person.  The  hitting  one  with  a 
stone  or  other  missile  is  no  less  a  battery  than  the  striking 
one  with  the  fist.  It  is  not  necessary  even  that  the  object 
cast  should  do  physical  harm ;  the  battery  consists  in  the  un- 
permitted contact,  not  in  the  damage.  For  example:  The 
defendant  spits  or  throws  water  upon  the  plaintiff.  This  is 
a  battery,  though  no  harm  be  done.^ 

374.  In  earlier  times  it  appears  to  have  been  considered 
that  a  battery  might  be  committed  merely  by  negligence. 
For  example:  The  defendant,  a  soldier,  handles 

his  arms  so  carelessly  in    drilling  as  to  hit   the  iigence  can 
plaintiff  with  them.     This  is  deemed  a  battery,    constitute  a 
though  the  act  was  not  intended. ^     The  above- 
mentioned  case  of  the  running    into  the  plaintiff's  carriage 
might  be  another  example.^     But  there  is  reason    to  doubt 
Avhether  cases  short  of  actual  or  virtual  intention,  or  reck- 
lessness, would  now  be  actionable  without  proof  of  damage. 

375.  But  a  person  may  be  guilty  of  a  battery  where  his 
act  is  directly  caused  by  another  person,  provided  the  defend- 
ant was  at  the  time  committing  a  crime  or  a  tres-  pi^intiff  not 
pass.     For  example :  The  defendant,  when  about  the  person  in- 
to discharge  a  gun  unlawfully  at  a  third  person,  is 

1  See  Regina  v.  Cote.sworth,  G  INIod.  172  ;  Pursell  v.  Horn,  8  Ad.  &  E. 
602.  A  word  of  explanation  is  necessary  as  to  the  latter  case.  Tlie 
plaintiff  had  sued  for  a  battery  by  throwing  of  water  on  him,  and  had 
failed  to  prove  it,  though  he  proved  certain  consequential  injuries,  and 
had  a  verdict  for  below  forty  shillings.  The  damages  not  reaching 
forty  shillings,  and  a  battery  not  having  been  proved,  the  plaintiff  was 
not  entitled  (under  the  statute)  to  the  costs  given  him.  He  now  attempted 
to  show  that  he  had  not  sued  for  a  battery  at  all,  or,  if  he  had,  that  a 
battery  had  been  admitted  by  the  defendant's  plea ;  which,  if  true,  would 
save  him  his  costs  as  given  by  the  jury.  But  the  court  decided  against 
him,  and  cut  down  the  costs  allowed;  thus  holding  that  to  throw  water 
upon  a  person  is  a  battery. 

2  AVeaver  v.  Ward,  Hob.  lU.    See  Holmes  v.  Mather,  L.  R.  10  Ex.  261. 
8  See  also  Hall  r.  Fearnley,  3  Q.  B.  919. 


190  LAW   OF   TORTS.  [Part  IL 

jostled  just  as  the  gun  is  fired,  and  the  direction  of  the  shot  is 
changed  so  as  to  cause  the  plaintiff  to  be  hit.  This  is  a  battery. ^ 
376.  Indeed  in  former  times  every  blow  which  resulted  from 
an  intended  act  seems  to  have  been  looked  upon  as  a  bat- 
Blow  received  tery,2  in  accordance  with  the  general  primitive 
accidentally     idea,  that  if  a  man  suffered  harm  at  the  hands  of 

by  a  person 

defending         another,  the  latter  must  justify  if  he  could.     The 
himself.  modern   authorities   strongly  tend  to  a  different 

view.  There  is  no  lattery^  according  to  the  modern  view, 
unless  the  blow  itself  was  intentional  or  reckless,  or  unless 
the  defendant  was  otherwise  conducting  himself  as  a  tres- 
passer at  the  time. 3  No  man  when  doin^  that  which  is  right- 
ful  should  be  held  liable  for  consequences  which  he  could  not 
prevent  by  prudence  or  care,  though  another  suffer  bodily  or 
other  harm  thereby.  Such  is  the  modern  theory  of  civil  lia- 
bility.* For  exami^le:  The  defendant's  horse,  ujDon  which 
the  defendant  is  lawfully  riding  in  the  highway,  takes  a 
sudden  fright,  runs  away  with  his  rider,  and  against  all  the 
efforts  of  the  defendant  to  restrain  him,  runs  against  and 
hurts  the  plaintiff.  This  is  not  a  battery  or  other  breach  of 
duty.5  Again:  The  defendant,  walking  near  the  plaintiff, 
suddenly  turns  round,  and  in  so  doing  hits  the  plaintiff  with 
his  elbow.     This  is  not  a  battery.^ 

1  See  James  v.  Campbell,  5  Car.  &  P.  372,  where  the  defendant,  in 
fighting  with  another,  hit  the  plaintiff  with  his  fist. 

2  See  Year  Book,  21  Hen.  7,  28;  Lambert  v.  Bussey,  T.  Raym.  421 ; 
Weaver  v.  Ward,  supra. 

3  Coward  v.  Baddeley,  4  H.  &  N.  478,  Martin,  B.,  infra ;  Holmes  v. 
Mather,  L.  R.  10  Ex.  2G1  ;  Wakeman  v.  Robinson,  1  Bing.  213 ;  Hall  v. 
Fearnley,  3  Q.  B.  919;  Brown  i-.  Kendall,  6  Cash.  292  ;  Cases,  191;  Vin- 
cent V.  Stinehour,  7  Vt.  62;  Nitroglycerine  Case,  15  Wall.  524.  See 
Spade  V.  Lynn  R.  Co.,  172  Mass.  488 ;  s.  c.  168  Mass.  285.  See  also 
Pollock,  Torts,  122  et  seq.,  2d  ed.  The  old  cases  have  fairly  ceased  to  be 
law,  both  in  England  and  in  America. 

*  Stanley  v.  Powell,  1891,  1  Q.  B.  86;  post,  p.  328. 

^  See  Vincent  v.  Stinehour,  7  Vt.  62,  and  example  cited  by  Williams, 
C.  J. ;  and  see  Holmes  v.  Mather,  supra,  a  still  stronger  case. 

^  A  case  put  by  Martin,  B.,  on  the  argument  in  Coward  v.  Baddeley, 
4  H.  &  N.  478.  Se'e  Brown  /•.  Kendall,  6  Cush  292  ;  Cases,  191 ;  Holmes  v. 
Mather,  supra  ;  Stanley  v.  Powell,  supra;  Holmes,  Common  Law,  105, 106. 


Chap.  VIII.  §  2.]  ASSAULT  AND   BATTERY.  191 

377.  Nor  is  there  necessarily  a  right  of  action  though  (not 
merely  the  general  action  of  the  defendant,  as  in  the  last  ex- 
ample, but)  the  specific  act  of  contact  be  inten-  Bjo^u^piay. 
tional,  for  it  may  have  been  done  in  sport  or  play ;  other  justifi- 
though  sport  could  doubtless  be  carried  to  such  ^  ®  '^^^^^^ 
an  extreme  as  to  create  liability.  It  is  not  even  a  decisive 
test,  always,  to  inquire  whether  the  act  was  done  against  the 
plaintiff's  will.  The  plaintiff  may  be  engaged  in  criminal 
conduct  at  the  time ;  or  he  may  be  lying,  unconsciously,  in 
an  exposed  condition ;  or  with  the  best  of  intentions  he  may 
be  doing  that  which  the  defendant  rightly  thinks  dangerous 
to  life  or  property.  In  the  first  of  these  cases,  an  arrest  of 
the  plaintiff  by  laying  on  of  hands  will  be  justifiable ;  in  the 
second  case,  an  arousing  or  removing  of  him  will  be  proper; 
in  the  third,  the  laying  on  of  hands  to  attract  his  atten- 
tion is  lawful.^  In  none  of  these  cases  is  there  liability, 
though  the  contact  be  against  the  will  of  the  plaintiff. ^  If 
however  the  act  were  done  in  a  hostile  manner,  the  case  would 
be  different.^ 

378.  A  battery  may  be  committed  in  an  endeavor  to  take 
one's  own  property  from  the  wrongful  possession  of  another. 
If  the  party  in  possession  should  refuse  to  give  ^^^^  , 
up  the  property,  the  owner  should  resort  to  the  own  property 
courts  to  obtain  it,  or  await  an  opportunity  to  ^°^  ^^°  ^^' 
get  possession  of  it  in  a  peaceful  manner.  He  has  no  right 
to  take  it  out  of  the  hands  of  the  possessor  by  force.  For 
example:  The  defendant,  finding  the  plaintiff  in  wrongful 
possession  of  the  former's  horse,  beats  the  plaintiff,  after  a 
demand  and  refusal  to  give  up  the  animal,  and  wrests  the 
horse  from  the  plaintiff's  possession.     This  is  a  battery.* 

^  As  to  the  last  case,  see  Coward  c.  Baddeley,  supra. 

2  These  however  are  properly  cases  of  justification;  the  justification 
accompanies  what  otherwise  would  be  actionable. 

3  Coward  v.  Baddeley,  supra. 

*  Andre  r.  Johnson,  6  Blackf.  .S75.  See  Suggs  v.  Anderson,  12  Ga. 
461.  But  the  defendant  could  keep  his  horse.  Scribner  v.  Beach,  4  Denio, 
448,  451. 


192  LAW   OF   TORTS.  [Part  II. 

§  3.    Of  Justifiable  Assault:  Self-defence:  'Son 

Assault  Demesne.' 

379.  There  are  a  few  eases  in  which  a  man  is  entitled  to 
take  the  law  into  his  own  hands  and  inflict  corporal  injury 
Administer-  '^^po^i  another.  Among  these  are  to  be  noticed 
ing  correc-       the  right  of  a  parent  to  give  moderate  correction 

to  his  minor  child;  the  (probable)  right  of  a 
guardian  to  do  the  like  to  a  minor  ward  placed  in  his  family ; 
the  right  of  a  schoolmaster  (when  not  prohibited  by  law  or 
school  ordinance)  to  do  the  like  to  his  scholars ;  ^  the  (possi- 
ble) right  of  a  master  to  do  the  like  to  young  servants ;  and 
the  right  of  officers  of  reform,  discipline,  or  correction  to  do 
the  like  towards  the  refractory  who  have  been  committed  to 
their  charsre. 

380.  Aside  from  these  and  similar  cases,  the  right  to  do 
that  which  would  otherwise  amount  to  an  assault  or  a  battery 

is  confined  to  two  or  three  cases,  all  of  which  are 
justified  on  grounds  either  of  self-defence  or  on 
the  ground  that  the  plaintiff  really  caused  the  act  of  which 
he  complains.  In  the  language  of  the  old  law  the  wrong 
complained  of  by  the  plaintiff  was  'son  assault  demesne.' 
A  person  cannot  be  liable  for  an  act  which  he  himself  has  not 
committed  or  caused,  either  personally  or  by  another  author- 
ized to  act  for  him.  Hence  if  the  plaintiff  himself  caused 
the  act  complained  of,  the  defendant  cannot  be  liable  to  him 
for  it. 

381.  The  chief  case  to  be  noticed  in  which  the  justification 
of  '  son  assault  demesne'  is  allowed  is  self-defence.  Wher- 
Protection  of  ever  it  has  become  apparently  necessary  to  the 
property.  defendant's  protection  to  repel  force  by  force,  he 
may  do  so.^     The  right  of  self-defence  extends  to  the  use  of 

^  See  Sheehan  v.  Sturges,  53  Conn.  481 ;  Hathaway  v.  Rice,  19  Vt. 
102;  Commonwealth  i\  Randall,  4  Gray,  36;  Cooper  v.  McJunkin,  4  Ind. 
290;  Fertich  v.  Michener,  111  Ind.  472. 

2  Drew  V.  Comstock.  57  :Mich.  176  ;  lAIiller  v.  State,  74  Ind.  1.  The 
difficulty  is  in  determining  when  it  is  apparently  necessary  to  do  the  thing 
complained  of,  and  when  one  may  strike  or  shoot  without  first  '  retreat- 


Chap.  VIII.  §  3.]  ASSAULT  AND   BATTERY.  193 

physical  force  in  the  protection  of  property  as  well  as  of  the 
person  of  the  defendant,  provided  the  property  be  at  the  time 
in  the  defendant's  possession.  No  one  has  a  right,  except 
under  authority  of  law,  to  seize  upon  the  property  of  which 
the  owner  is  in  possession;  to  do  so  is  to  take  the  risk  of 
bodily  violence.  For  example:  The  plaintiff,  a  creditor  of 
the  defendant,  seizes  the  defendant's  horses  (which  the 
latter  is  using)  for  the  purpose  of  obtaining  satisfaction  of 
his  debt.  The  defendant  resists  and  strikes  the  plaintiff. 
He  is  not  liable  if  he  did  not  exceed  the  bounds  of  defence.^ 

382.  If  the  owner  or  person  entitled  to  possession  was  out 
of  possession  at  the  time  of  committing  the  alleged  assault  or 
battery,  he  will  not  be  permitted  to  say,  by  way  of  defence, 
that  the  plaintiff  caused  the  assault  b}'  having  previously 
taken  wrongful  possession,  or  by  having  wrongfully  detained 
the  defendant's  property.  Such  is  not  a  case  of  son  assault 
demesne,  as  the  example  already  given  of  the  horse  taken  from 
the  plaintiff's  possession  by  violence  shows. ^ 

383.  And  though  a  trespasser  should  make  an  assault  upon 
the  owner  of  property,  and  seek  to  take  it  out  of  the  owner's 
possession,  the  owner  is  allowed  to  use  no  greater  force  in 
resisting  the  unlawful  act  than  may  be  necessary  for  the 
defence  of  his  possession.^  If  he  should  reply  to  the  tres- 
passer's attempt  with  a  force  out  of  proportion  to  the 
provocation,  the  act  would  then  be  his  own  battery,  and  not 
the  plaintiff's ;  or  again,  in  the  technical  language  of  the  old 
pleading,  the  plaintiff  can  then  reply  to  the  defendant's  plea 
of  son   assault  demesne,  that  the  tort  was  '  de  injuria  sua 

ing  to  the  wall.'  See  Howland  r.  Day,  56  Vt.  318;  Haynes  v.  State, 
17  Ga.  465;  State  v.  Dixon,  75  K  C.  275;  Cooley,  Torts,  190,  2d  ed. 
Retreat  cannot  be  required  where  action  upon  the  instant  appears  to  be 
necessary  for  self-protection.  See  Beard  v.  United  States,  158  U.  S.  550; 
Page  V.  State,  40  N.  E.  Rep.  745  (Ind.). 

1  See  Cluff  v.  Mutual  Ben.  Life  Ins.  Co.,  13  Allen,  308;  s.  c.  99  Mass. 
317;  Scribner  v.  Beach,  4  Denio,  448. 

2  Ante,  p.  191. 

8  The  allowable  force  in  such  a  case  is  expressed  by  the  words  of  the 
old  pleading,  '  moUiter  manus  iniposuit,'  —  the  defendant  gently  laid  his 
hands  upon  the  plaintiff. 

13 


194  LAW   OF   TORTS.  [Part  II. 

propria,'  — the  defendant's  own  wrong.  For  example:  The 
defendant,  owner  of  a  rake  which  is  in  his  own  hands,  knocks 
the  plaintiff  down  with  his  fist,  upon  the  plaintiff's  taking 
hold  of  the  rake  to  get  possession  of  it.  The  defendant  is 
liable.^  Again:  The  defendant  strikes  the  plaintiff  repeated 
blows,  knocking  her  down  several  times,  upon  her  refusal 
to  quit  the  defendant's  house.  The  plaintiff'  is  entitled  to 
recover.^ 

384.  Nor  is  it  lawful  for  the  owner  of  property,  in  defence 
of  his  possession,  to  make  an  attack  upon  the  trespasser  with- 
out first  calling  upon  him  to  desist  from  his  unlawful  pur- 
pose, unless  the  trespasser  is  at  the  time  exercising  violence. 
In  the  example  last  given,  the  defendant  would  have  been 
liable  for  a  mere  hostile  touch  had  he  not  first  requested  the 
plaintiff  to  leave  his  premises;  unless  she  had  entered  his 
premises  forcibly.^ 

385.  In  the  next  place  it  is  to  be  observed  that  a  person 
may  not  only  make  reasonable  defence  of  his  OAvn  person,  and 

of  the  possession  of  his  own  property;  he  may 
defence  of        do  the  Same    towards  the    members  of   his   own 

members  of  family  when  attacked,*  and  perhaps  also  towards 
one  s  family.  •'  '  x  x 

the  inmates  of  a  house  in  which  he  is  then  receiv- 
ing hospitality.  Certain  it  is  that  a  servant  may  justify  a 
battery  as  committed  in  defence  of  his  master;^  that  is,  he 
may  do  anything  in  his  master's  defence  which  his  master 
himself  might  do.  And  on  the  other  hand,  notwithstanding 
some  doubts  in  the  books,  a  master  may  justify  a  battery  as 
committed  in  defence  of  his  servant.  For  example:  The 
plaintiff  attacks  the  defendant's  servant,  whereupon  the  de- 
fendant assists  his  servant  to  the  extent  of  repelling  the 
attack,  and  no  further.     The  defendant  is  not  liable.^ 

1  Scribner  v.  Beach,  4  Denio,  448. 

2  Gregory  v.  Hill,  8  T.  R.  299. 

3  See  Scribner  v.  Beach,  4  Denio,  448. 

4  Black.  Com.  i.  429. 

6  Reeve,  Domestic  Rel.  538  (.3d  ed.). 
«  Tickell  v.  Read,  LofCt,  215. 


CiiAP.  VIII.  §  4.]  ASSAULT  AND  BATTERY,  195 

386.  A  person  may  also  justify  the  use  of  a  proper  amount 
of  physical  force  as  rendered  in  quelling  a  riot  or 

an  affray  at  the  instance  of  a  constable  or  other  ^  "°  ' 

officer  of  the  peace/  or  perhaps  of  his  own  motion  when  no 
officer  is  present. 

§  4.    Of  Violence  to  or  towards  one's  Servants. 

387.  It  will  have  been  observed  that  a  double  breach  of 
duty  may  be  committed  by  the  same  assault  or  battery;  one 
to  the  person  to  whom  the  violence  is  done,  and,  Double  breach 
where  such  person  is  a  servant  or  a  child  of  the  °^  ^^^7- 
plaintiff,  another  breach  to  the  person  whom  he  or  she  was 
serving  or  assisting.  It  follows  that  each  has  a  right  of 
action  against  the  wrongdoer  in  resj)ect  of  the  breach  of  his 
own  individual  right;  the  servant  or  child  for  the  violence 
(that  is,  for  the  assault  or  battery)  and  its  proper  conse- 
quences, and  the  master  or  parent  for  the  loss  of  service  or 
assistance.'^ 

388.  There  will  be   this  difference  however   between    the 

rights  of  action  of  the  master  and  the  servant  (using  these 

terms   generically),   that  the  latter  will  be  enti- 

,  1     1   ,  •     1  1.  £       2.^  li.         1    Distinction  be- 

tled  to  recover  judgment  tor  the  mere  assault  and  tween  mas- 
battery,    thougfh   no   damage    were    actually   in-  ter's  action 

and  servant's 
flicted;  while  the  former  will  be  entitled  to  judg- 
ment only  in  case  he  can  prove  either  (1)  that  the  violence 
committed  was  such  as  to  disable  the  person  who  sustained 
it  from  rendering  the  amount  of  aid  which  he  or  she  was  able 
to  render  before  the  act  complained  of;  or  (2)  that  such  per- 
son was,  by  reason  of  the  violence,  caused  to  depart  from  or 
abandon  the  service  or  abode  of  the  plaintiff.^     That  is,  the 

1  Year  Book,  19  Hen.  6,  pp.  43,  56  ;  L.  C.  Torts,  270. 

2  The  relation  of  parent  and  child  is  for  such  purpose  the  relation  of 
master  and  servant.  That  is  not  true  of  the  relation  of  husband  and 
wife ;  but  whether  the  husband  could  recover  alone  for  a  battery  com- 
mitted upon  his  wife  without  proving  special  damage,  quaere  ? 

8  The  authorities  upon  this  subject  are  mostly  ancient,  but  they  are 
still  law.     See  L.  C.  Torts,  226,  227. 


196  LAW  OF  TORTS.  [Part  II. 

master  must  have  sustained  an  actual  damage ;  ^  but  if  he 
has  thus  been  injured,  he  is  entitled  to  recover  therefor,  even 
though  the  defendant's  act  consisted  only  in  violent  demon- 
strations. For  example:  The  defendants,  by  menaces  and 
angry  demonstrations  against  the  plaintiif's  servants,  cause 
them  to  leave  and  abandon  the  plaintiff's  service.  The  de- 
fendants are  liable ;  though  no  bodily  violence  was  committed 
upon  the  servants.^ 

389.  The  plaintiff  must  either  have  been  entitled  to  require 
Eight  to  ser-  the  services  of  the  party  assaulted  or  beaten,  or 
^^<=s-  he  must  have  been  in  the  actual  enjoyment  of 
them,  if  they  were  gratuitous.  A  parent  cannot  main- 
tain an  action  for  an  assault  or  a  battery  committed  upon 
his  child  after  the  child's  majority,  unless  he  or  she  was 
then  actually  in  the  parent's  service;  nor  could  the  parent 
maintain  an  action  for  such  an  injury  committed  upon  his 
child  during  the  child's  minority,  if  the  parent  had  in  any 
way  divested  himself  of  the  right  to  require  his  child's 
services. 3 

390.  It  is  laid  down  that,  apart  from  malicious  interference, 

only  the  parties  to  a  contract  (and  their  successors  in  right) 

^    ^     ^  can  maintain  an  action  for  a  breach  thereof ;  and 

Contract.  ,  .„    .        ,  p  »         . 

hence  ii,  m  the  course  oi  performing  a  contract 

between  the  defendant  and  the  plaintiff's  servant,  the  de- 
fendant commit  a  battery  upon  the  servant,  which  battery 
works  a  breach  of  the  terms  of  the  contract,  the  plaintiff  has 
no  right  of   action  for  the  loss  of  service   following.      For 

1  In  the  case  of  an  assault  or  battery  upon  one's  wife,  the  husband  at 
common  law  joined  in  the  action  ;  but  the  real  right  of  action  lay  in  the 
wife.  And  in  times  of  servitude  the  master  could,  it  seems,  sue  in 
trespass  for  an  assault  or  battery  committed  upon  his  villein,  even 
though  the  former  sustained  no  damage.     L.   C.  Torts,  227. 

2  Year  Book,  20  Hen.  7,  p.  5;  L.  C.  Torts,  226.  These  are  cases  of  tho 
use  of  wrongful  means ;  they  are  to  be  distinguished  from  cases  of  per- 
suasion.    See  ante,  chaps,  iv.,  v. 

*  Questions  of  this  soit  have  generally  arisen  in  actions  for  seduction. 
See  ante^  135  et  seq. 


"Chap.  VIII.  §  4.]  ASSAULT  AND  BATTERY.  197' 

example:  The  defendants,  common  carriers  of  passengers, 
are  paid  by  tlie  plaintiff's  servant  for  safe  passage  from  A  to 
B.  On  the  way  the  servant  is  assaulted,  bruised,  and  in- 
jured by  servants  acting  for  the  defendants,  the  defendants 
thus  failing  to  carry  the  servant  safely  according  to  their 
agreement;  whereby  the  plaintiff  loses  the  injured  person's 
service  for  a  period  of  nineteen  weeks.  The  plaintiff  is  not 
entitled  to  recover;  the  injury  being  deemed  to  be  due  to 
breach  of  duty  to  the  servant  alone.  ^ 

391.  By  the  common  law,  rights  of  civil  action  for  injuries 
done  to  the  person  (and  indeed  all  rights  of  action  ex  delicto, 
except  for  the  wrongful  taking  or  detention  of  Death  of  par- 
property  and  like  acts  2)  cease  with  the  death  of  t^^^- 
the  party  injured  or  of  the  wrongdoer.  '  Actio  personalis 
muritur  cum  persona.'  And  this  rule,  though  not  without 
strong  doubts,  has  been  held  to  apply  to  actions  by  masters 

1  Compare  Alton  ;;.  Midland  Ry.,  19  C.  B.  n.  s.  213  ;  s.  c.  15  Jur.  n.  s. 
672;  Fairmount  Ry.  Co.  v.  Stutler,  54  Penn.  St.  375.  See  Taylor  o. 
Manchester  Ry.  Co.,  1805,  1  Q.  B.  134,  140;  id.  944;  Harvard  Law  Rev., 
Nov.  1895,  p.  215;  post,  pp.  398-401. 

The  contract-duty  may  or  may  not  be  the  only  duty  in  the  ca.se.  If  I 
buy  a  gun  for  myself  only,  the  contract-duty  of  the  seller  in  regard  to  the 
proper  making  of  the  gun  is  to  me  alone.  See  Meux  o.  Great  Eastern 
Ry.  Co.,  1895,  2  Q.  B.  387,  390.  But  if  the  seller  understands  that  the 
rights  of  another  are  involved,  —  that  another  also  is  to  use  the  gun,  — 
then  there  is  a  duty  to  that  person  as  well  as  to  me.  Langridge  v.  Levy, 
2  M.  &  W.  519 ;  s."^  c.  4  M.  &  W.  338,  Exch.  Ch.  See  also  I'horaas  v. 
Winchester,  6  N.  Y.  397 ;  Cases,  567.  The  real  reason  then  for  the  de- 
cision in  the  example  of  the  text  appears  to  be,  that  the  defendant  did 
not  knovF  of  the  rights  of  any  one  but  the  servant.  Duty  imports  observed 
or  observable  danger.     Ante,  p.  12. 

2  Ante,  pp.  49.  .50.  See  Phillips  v.  Homfray,  24  Ch.  Div.  439;  also 
the  early  statutes,  4  Edw.  3,  c.  7,  25  Edw.  3,  st.  5,  c.  5,  and  the 
modern  one,  3  &  4  Wm.  4,  c.  42 ;  Pollock,  Torts,  59,  2d  ed.  And  Lord 
Campbell's  Act,  9  &  10  Vict.  c.  93,  copied  very  widely  in  this  country, 
with  slight  changes,  gives  a  right  of  action  to  the  personal  representative 
'  for  the  benefit  of  the  wife,  husband,  parent,  and  child  of  the  person  ' 
killed.  See  Seward  v.  The  Vera  Cruz,  10  App.  Cas.  59  (overruling  The 
Franconia,  2  P.  D.  163);  Pym  v.  Great  Northern  Ry.  Co.,  4  Best  ik  S. 
396,  Ex.  Ch. ;  Bulmer  c.  Buhner,  25  Ch.  D.  409. 


198  LAW  OF  TORTS.  [Part  H 

for  the  killing  of  their  servants. ^  The  rule  that  the  action 
dies  with  the  death  of  either  party  permits  however  an  action 
by  the  master  for  damages  between  the  time  of  the  injury  of 
the  servant  and  his  death,  where  death  was  not  immediate. ^ 

^  Osborn  v.  Gillett,  L.  R.  8  Ex.  88,  Bramwell,  B.,  dissenting  strongly. 
See  also  Pollock,  Torts,  57,  58,  2d  ed. 

2  Baker  v.  Bolton,  1  Camp.  493 ;  Osborn  v.  Gillett,  L.  R.  8  Ex.  88,  90, 
98;  Sullivan  v.  Union  Pacific  R  Co..  1  Cent.  L  J.  595.  See  also  Insur- 
ance Co  V.  Brame,  95  U.  S,  754 ;  2  Southern  Law  Rev.  N.  s.  186 ;  Har- 
vard Law  Rev.,  Dec.  1900,  pp.  290,  291. 


CHAPTER   IX. 

■   FALSE   IMPRISONMENT. 

Statem,ent  of  the  duty.  A  owes  to  B  the  duty  not  to  impose 
a  total  restraint  upon  B's  freedom  of  locomotion. 

Tlie  terms  '  writ, '  '  warrant, '  '  precept, '  and  '  process  ' 
are,  in  tliis  chapter,  used  as  equivalents,  wherever  it  is  not 
necessary  to  distinguish  them. 

The  term  '  irregular, '  as  applied  to  a  writ,  refers  to  some 
improper  practice  on  the  part  of  the  person  who  obtains  the 
writ,  as  distinguished  from  '  error,'  in  decision.^  A  writ  is 
sometimes  absolutely  void  for  irregularity,^  sometimes  only 
voidable. 

By  comparatively  recent  statutes,  arrest  in  civil  suits  has 
been  prohibited,  except  in  a  few  special  cases,  ^  so  that  the 
particular  facts  of  many  of  the  older  authorities  no  longer 
appear;  but  the  principles  upon  which  they  rested  have  not 
been  changed. 

§  1.    Of  the  Nature  of  the   Restraint  :  What   must 

BE  Proved,  etc. 

392.  A  false  imprisonment  consists  in  the  total,  or  sub- 
stantially total,  restraint  of  a  man's  freedom  of  locomotion.^ 

Proof  of  such  restraint  will  make  a  prima  facie      ^  ^  .  . 

mi  -111  Definition, 

case.      Ihe  act  may  be  committed  not   only  by 

placing  a  man  within  prison  walls,  but  also  by  restraint  im- 

^  See  Everett  v.  Henderson,  146  Mass.  89  ;  Cases,  232. 

'^  As  a  writ  in  execntion  of  a  judgment  which  has  been  discharged  to 
the  knowledge  of  the  person  suing  out  the  same.  Deyo  v.  Van  Valken- 
burgh,  ,5  Hill,  242. 

3  See  e.  g.  Mass.  Pub.  Stats,  c.  162,  §§  1-3. 

*  Bird  V.  Jones,  7  Q.  B.  7i2,  752. 


200  LAW  OF  TORTS.  [PartIL 

posed  upon  him  in  liis  own  house  or  room,  or  in  the  high- 
way, or  even  in  an  open  tield.^ 

393.  Any  general   restraint  is   sufficient   to  constitute  an 
imprisonment;  and   though  this   be  effected  without   actual 

contact  of  the  person,  it  will   be  presumptively 
Contact.  actionable.     Any  demonstration  of  physical  power 

which,  to  all  appearance,  can  be  avoided  only  by  submission, 
opei-ates  as  effectually  to  constitute  an  imprisonment,  if  sub- 
mitted to,  as  if  any  amount  of  force  had  been  exercised. 
For  example :  The  defendant,  an  officer,  says  to  the  plaintiff, 
'  I  want  you  to  go  along  with  me, '  with  a  show  of  authority, 
or  of  determination  to  compel  the  plaintiff  to  go.  This  is 
an  imprisonment,  though  the  defendant  do  not  touch  the 
plaintiff.^ 

394.  A  person  may  also  be  imprisoned,  though  he  had  not 
the  full  power  of  locomotion  before  the  restraint  was  imposed. 
Power  of  It  appears  to  be  sufficient  if  his  will  has  been 
movement.  y^  overcome  that  he  would  not  attempt  to  escape 
the  restraint  if  he  had  the  physical  ability  of  locomotion. 
For  example:  The  defendant,  a  creditor  of  the  plaintiff,  goes 
with  an  officer  to  the  plaintiff's  house,  in  order  to  compel  him 
to  give  security  for  or  make  })ayment  of  his  debt,  which  is  not 
due.  The  plaintiff  is  found  sick  in  bed;  whereupon  the 
officer  tells  him  that  they  have  not  come  to  take  him,  but 
to  get  a  certain  article  of  property  belonging  to  the  plaintiff, 
though,  if  he  will  not  deliver  that  or  give  security,  they  must 
take  him  or  leave  some  one  in  charge  of  him.  The  plaintiff, 
much  alarmed,  gives  up  the  article.  This  is  an  imprison- 
ment. ^ 

395.  The  sul)mission  therefore  to  the  threatened  and  reason- 
ably apprehended  use  of  force  is  not  to  be  considered  as  a 
consent  to  the  restraint,  within  a  maxim  which  has  frequent 
application  in   the   law  of   torts,  '  volenti  non   fit   injuria.' 

1  Lib.  Ass.  (-22  Edw.  3),  p.  104,  pi.  85. 

2  Brushaber  v.  Stegemanii,  '22  :\Iich.  266,  268.  See  Hill  v.  Taylor,  50 
Mich.  549. 

s  Grainger  v.  Hill,  4  Biiig.  N.  C.  212 ;  Cases,  67. 


Chap.  IX.  §  2.]  FALSE   IMPRISONMENT.  201 

And  the  imprisonment  continues  until  the  party  is  allowed  to 
depart,  and  is  involuntary  until  all  general  restraint  ceases, 
and  the  means  of  effecting  it  are  removed.^ 

396.  It  is  not  enough  that  restraint  is  imposed  upon  one's 
freedom  of  proceeding  in  a  particular  desired  direction.  The 
detention  must  be  such  as  to  cause  escape  in  any  circumscrib- 
direction  to  amount  to  a  breach  of  the  restraint;  ing restraint, 
the  restraint  should  be  circumscribing,  except  perhaps  where 
the  only  place  of  escape  is  an  almost  impassable  one.  For 
example :  The  defendant,  an  officer,  stationed  at  a  particular 
point  to  prevent  persons  from  passing  in  a  certain  direction, 
restrains  the  plaintiff  from  passing  that  way,  but  leaves  an- 
other way  open  to  him,  of  which  however  he  does  not  wish  to 
avail  himself;  and  thus  detained  the  plaintiff  stands  there 
for  some  time.      This  is  not  an  imprisonment.^ 

397.  It  follows  from  the  last  proposition,  and  from  what 
had  been  stated  before,  that  a  person  detained  within  walls  is 
none  the  less  imprisoned  by  reason  of  the  fact  prison  walls 
that  he  may  make  an  escape  through  an  unfas-  ^°^  necessary. 
tened  window  or  door;  since  such  an  act  would  be  a  breach 
of  the  restraint.  If  it  would  not  be,  there  is  no  imprison- 
ment; supposing  that  the  unfastened  door  or  window  affords 
a  ready  means  of  escape. 

§  2.    Of  Arrests  with  Warrant. 

398.  Supposing    the    restraint   imposed    to  amount   to  an 
imprisonment,   it  is    proper   next    to  consider   how  the  pre- 
sumptive right  of  action  for  such  an  act  can  be      justifiable 
overturned.     How  is  it  to  be  shown  that  the  im-      arrests. 

^  Johnson  v.  Tornpkiii.s,  Baldw.  .571,  602. 

2  Bird  V.  Jones,  7  Q.  B.  742.  '  A  prison  may  have  its  boundary  large 
or  narrow,  invisible  or  tangible,  actual  or  real,  or  indeed  in  conception 
only;  it  may  in  itself  be  movalile  or  fixed;  but  a  boundary  it  must  have, 
and  from  that  boundary  the  party  imprisoned  must  be  prevented  from 
escaping  ;  he  must  be  prevented  from  leaving  that  place  witliin  the  limit 
of  which  the  party  imprisoned  could  be  confined.'  Id.  Coleridge,  J. 
Cases,  207,  208. 


202  LAW  OF  TORTS.  [Part  H. 

prisonment  was  not  unlawful?  In  other  words,  how  is  the 
act,  in  technical  language,  to  be  justified?  This  may  be 
done  in  several  ways,  all  of  which  however  will  be  passed 
over  except  such  as  relate  to  the  administration  of  justice. 
Of  justifications  of  that  kind  the  most  common  and  the 
most  important  arises  where  an  officer  has  made  an  arrest 
under  a  lawful  warrant  of  a  court  of  justice.^  This  will 
now  be  taken  for  special  consideration.  Arrests  without 
warrant  by  officers  or  by  private  citizens  will  follow  in  a 
distinct  section. 

If 

399.  It  is  to  be  observed  at  the  outset  that  the  officer,  in 
executing  his  process,  must  arrest  the  person  named  in  it. 
Arrest  of  I^  ^^  ^^  ^^ot,  though  the  arrest  of  the  wrong  per- 
wrong  person,  gon  was  made  through  mere  mistake,  it  may  be  a 
case  of  false  imprisonment.  And  this  appears  to  be  true, 
though  the  party  arrested  bear  the  same  name  as  the  party 
against  whom  the  writ  is  directed.  For  example :  The  de- 
fendant, a  constable,  asks  the  plaintiff  if  his  name  is  J.  D., 
to  which  the  plaintiff  replies  in  the  affirmative;  whereupon 
the  defendant  takes  the  j)laintiff  into  custody,  the  plaintiff 
not  being  the  person  intended  by  the  writ.  This  is  a  case  of 
false  imprisonment.'-^ 

400.  If  however  the  plaintiff,  though  not  the  person  in- 
tended by  the  process,  should  do  anything  to  mislead  the 
officer,  and  cause  the  latter  to  believe  that  the  former  was  the 
person  meant  by  the  precept,  the  officer  commits  no  breach 
of  duty  in  making  the  arrest.  The  jilaintiff's  action  is  a 
consent,  and  something  more.  For  example:  The  defendant, 
a  sheriff,  arrests  the  plaintiff  under  process  of  court,  upon  a 
representation  made  by  her  that  she  was  E.  M.  D.,  and  the 
person  against  whom  the  writ  had  issued ;  with  the  intention 
of  procuring  the  defendant  to  arrest  her  under  his  writ.     The 

1  Chambers  v.  Oehler,  107  Iowa,  155.  See  ante,  p.  199,  of  arrests  in 
civil  suits. 

2  Coote  V.  Lighworth,  F.  Moore,  457.  It  is  to  be  noticed  that  the 
plaintiff  in  this  case  did  notliing  to  induce  the  officer  to  arrest  him  as 
the  person  intended. 


Chap.  IX.  §  2.]  FALSE   IMPIUSOXMENT.  203 

defendant,  believing  the  representation  to  be  true,  makes  the 
arrest.     This  is  not  a  breach  of  duty.^ 

401.  The  officer's  process  however  should  so  describe  the 
person  to  be  arrested  that  he  may  know  whom  to  arrest;  or, 
rather,  that  a  person  whom  he  proposes  to  arrest  Description  of 
may  know  whether  to  resist  or  submit.  If  the  person, 
warrant  be  defective  in  this  particular,  the  officer  acts  at  his 
peril  in  serving  it ;  and  he  will  be  liable  to  any  one  whom  he 
may  arrest  under  it.  For  example:  The  defendant,  a  con- 
stable, arrests  the  plaintiff  under  a  warrant  reciting  the 
commission  of  a  felony  by  John  R.  M,,  and  then  command- 
ing the  officer  to  arrest  the  said  William  M.  The  defendant 
is  liable  for  false  imprisonment,  though  the  plaintiff  is  the 
person  intended. ^ 

402.  It  follows  that  the  officer  may  be  liable  if  there  be  a 
misnomer  in  the  warrant  of  the  person  intended,  though  the 
person  actually  meant  was  arrested,  and  that  too 

(in  other  respects)  on  legal  grounds.  For  exam- 
ple: The  defendants  cause  the  plaintiff,  whose  name  is 
Eveline,  to  be  arrested  under  the  name  of  Emeline  in  the 
warrant.  This  is  a  breach  of  duty,  though  the  plaintiff,  in 
her  proper  name,  was  legally  liable  to  such  an  arrest.^  But 
the  case  would  have  been  different  had  the  plaintiff  been 
known  alike  by  either  name.* 

403.  The  officer  also  loses  the  protection  of  his  warrant  if 
he  fails  to  act  in  accordance  with  the  duty  enjoined  by  it. 
He  must  follow  the  tenor  of  his  process,  and  not  _,         „ 
surpass  his   autliority.     For   example :    The    de-  process  to  be 
fendant  arrests  the  plaintiff  beyond  the  precincts    °  °^^  " 
named  in  the  warrant.     This  is  a  false  imprisonment.^ 

^  Dunston  v.  Paterson,  2  C.  B.  n.  s.  495.  The  sheriff  however  had 
detained  the  plaintiff  improperly  after  discovering  his  mistake,  and  for 
this  he  was  held  liable. 

2  Miller  v.  Foley,  28  Barb.  630. 

2  Scott  V.  Ely,  4  Wend.  555. 

*  Griswold  v.  Sedgwick,  1  AYend.  126. 

5  This  is  too  fundamental  to  have  been  much  agitated  iu  the  courts. 
No  authority  is  needed  for  the  example. 


204  LAW  OF  TORTS.  [Part  IL 

404.  It  is  further  to  be  noticed  that,  though  the  process 
and  arrest  be  valid,  the  protection  of  the  officer  may  be  lost 
Oppressive  by  oppressive  or  cruel  conduct.  For  example: 
conduct.  Xhe  defendant,  charged  with  a  warrant  simply  to 
take  the  body  of  the  plaintiff,  unites  with  the  person  at  whose 
instance  the  arrest  is  made  in  illegally  extorting  money  from 
the  plaintiff  by  working  upon  his  fears.  The  defendant  is 
liable  for  a  false  imprisonment.^ 

405.  The  officer's  protection  will  not  extend  to  any  deten- 
tion after  the  warrant  has  expired.  The  warrant,  however 
Detention         valid  at  first,  will  not  justify  such  an   act.     If 

after  process     the  officer  has  reason  for  holding  the  prisoner  after 

has  expired.       ,  i  •     i.  •  r  ...i  ^    i  j. 

the  expiration  or  the  warrant,  he  must  procure  new 

process.  He  can  hold  the  prisoner  only  for  a  reasonable  time 
before  his  examination;  after  that  time,  the  warrant  loses  its 
vitality.  For  example :  The  defendant  arrests  the  plaintiff, 
and  takes  him  before  a  magistrate  on  a  charge  of  larceny,  de- 
taining him  for  a  period  of  three  days,  in  order  that  the  party 
whose  goods  had  been  stolen  miglit  have  an  opportunity  to 
collect  his  witnesses  and  prove  the  crime.  This  is  a  false 
imprisonment,   the  detention  being  unreasonable. ^ 

406.  When  an  arrest  has  been  made  upon  a  valid  warrant, 
the  officer  may  detain  the  prisoner  on  any  number  of  other 
valid  warrants  which  he  has  at  the  time,  or  which  may  after- 
wards, during  the  detention,  reach  him.  But  if  the  officer 
make  the  arrest  on  void  process,  or  in  an  otherwise  illegal 
manner,  he  has  no  right  to  detain  the  party  on  any  valid 
process  which  may  be  in  his  hands ;  for  the  officer,  upon  a 
principle  elsewhere  stated,  cannot  avail  himself  of  a  custody 
effected   by  illegal  means  to  execute  valid   process.^      The 

^  Ilolley  V.  Mix,  3  Wend.  3.50.  In  such  a  case  the  process  appears  to 
be  used  as  a  mere  svibterfuge  to  cover  an  unlawful  purpose  and  act. 
Hence  it  is  that  not  merely  the  subsequent  act  but  the  arrest  itself  is 
unlawful.  See  post,  pp.  242-244;  Grainger  v.  Hill,  4  Biug.  N.  C.  212; 
Cases,  67. 

2  Wright  V.  Court,  4  B.  &  C.  596.  The  prisoner  should  have  been 
taken  before  a  magistrate  at  once. 

*  Hooper  V.  Lane,  6  II.  L.  Cas.  443. 


K 


Chap.  IX.  §  2.]  FALSE   IMPRISONMENT.  205 

prisoner  should  first  be  permitted  to  go  at  large,  and  then 
arrested  under  the  valid  warrant.  For  example:  The  de- 
fendant improperly  arrests  the  plaintiff  without  a  warrant, 
and  while  holding  him  in  custody  delivers  him  to  an  officer. 
The  defendant  afterwards  receives  a  valid  warrant  for  the 
plaintiff's  arrest  from  an  officer  who  held  it  at  the  time  of 
the  arrest.  The  plaintiff  has  a  right  of  action  for  a  false 
imprisonment.^ 

407.  The  principle  to  be  derived  from  the  cases  (to  restate 
this  important  doctrine  in  the  language  of  the  courts)  is  then 
that  where  the  officer  legally  arrests  the  party  in  one  action, 
the  arrest  operates  virtually  as  an  arrest  in  all  the  actions  in 
which  the  officer  holds  valid  writs  against  him  at  the  time; 
for  it  would  be  an  idle  ceremony  to  arrest  the  party  in  the 
other  cases.  And  this  detainer  will  hold  good,  though  the 
court  may,  upon  collateral  grounds,  unconnected  with  the  act 
of  the  officer,  order  the  party  to  be  discharged  from  the  first 
arrest.  But  where  the  officer  has  illegally  arrested  the  party, 
he  is  not  in  custody  under  the  first  warrant,  but  is  suffering 
a  false  imprisonment;  and  such  false  imprisonment,  being  no 
arrest  in  the  original  action,  cannot  operate  as  an  arrest  under 
the  other  warrants  in  the  officer's  hands. ^ 

408.  It  is  important,  in  the  next  place,  to  inquire  into  the 
right  )i  an  officer  to  retake  a  prisoner  under  the  original 
warrant,  after  an  escape.     It  is  clear  that  if  the 

escape  was  made  without  the  consent  of,  the 
officer,  while  the  writ  was  still  in  force,  that  is,  not  fully 
executed,  the  prisoner  may  be  retaken  on  the  old  warrant, 
without  rendering  the  officer  liable  to  an  action  for  false  im- 
prisonment. In  case  of  an  escape  permitted  by  the  officer, 
his  right  of  retaking  on  the  old  writ  will  depend  on  the  nature 
of  the  case.  When,  in  civil  cases,  an  arrest  is  proper,  an 
officer  who  has  arrested  a  man  may,  it  seems,  retake  him 
before  the  return  of  the  process,  though  he  voluntarily  per- 

1  Barratt  v.  Price,  9  Bing.  566. 

2  Tindal,  C.  J.,  in  Barratt  v.  Price,  and  Williams,  J.,  in  Hooper  v. 
Lane,  supra. 


206  LAW  OF  TORTS.  [PartH. 

mitted  him  to  escape  immediately  after  the  arrest.  So  at  all 
events  it  was  held  under  the  old  law.  For  example:  The 
defendant  arrests  the  plaintiff  in  civil  process,  and  on  the  fol- 
lowing day  releases  him  upon  the  latter's  request.  Two 
days  afterwards,  the  defendant  rearrests  the  plaintiff  on  the 
old  process  and  commits  him  to  jail,  where  he  remains  until 
he  gives  bail ;  the  old  process  not  being  yet  returnable  (that 
is,  being  still  in  force).  This  is  not  a  breach  of  duty  on  the 
part  of  the  officer.-' 

409.  In  regard  to  criminal  cases,  there  has  been  some  con- 
flict of  authority  concerning  the  right  to  take  the  prisoner 
without  new  process.  It  has  sometimes  been  decided  that 
the  prisoner  may  be  so  retaken. ^  In  later  decisions,  this 
doctrine  has  been  denied  to  be  law,  except  in  so  far  as  it  may 
apply  to  the  case  of  a  prisoner  who,  after  escape  from  jail,^  has 
returned  and  given  himself  into  the  custody  of  the  officer;  in 
that  case  the  prisoner  can  be  detained  under  the  old  warrant.* 
,|\/^  And  this  appears  to  be  the  true  rule  and  distinction.  For 
example :  The  defendant,  an  officer  of  the  peace,  clothed  with 
a  warrant  to  arrest  the  plaintiff  upon  a  charge  of  larceny, 
executes  the  same  upon  her,  and  takes  her  before  a  justice  of 
the  peace,  who  receives  her  recognizance  to  appear  for  trial 
at  another  court  upon  a  certain  day.  She  is  then  discharged 
from  arrest.  No  court  is  held  at  the  place  and  time  stated. 
Afterwards  the  defendant  rearrests  her  upon  the  old  warrant, 
and  takes  her  before  another  magistrate.  This  is  a  false 
imprisonment.^ 


J-' 


V 


410.  An  arrest  made  under  a  void  writ  will  generally  ren- 
der the  officer,  as  has  already  been  stated,  liable  to  an  action 

1  Atkinson  v.  Matteson,  2  T.  R.  172. 

2  Clark  V.  Cleveland,  6  Hill,  344.  In  this  case,  the  prisoner  had  been 
let  to  bail  in  the  wrong  county,  and  then  released  from  custody ;  and,  in 
an  action  by  him  for  malicious  prosecution,  it  was  held  that  the  plaintiff 
was  still  liable  to  arrest  under  the  original  warrant,  and  that  therefore, 
the  proceedings  not  being  terminated,  the  action  could  not  be  maintained, 

8  That  is,  after  the  warrant  has  been  executed. 

*  Doyle  0.  Russell,  30  Barb.  300.  6  Id. 


Chap.  IX.  §  2.]  FALSE   IMPRISONMENT.  207 

for  false  imprisonment.     But  in  order  to  subject  him  to  such 

liability,  the  writ  must  have  been  void  on  its  face ; 

.•,,.         j;  T  T4-      4.1  J-  Void  process. 

that  IS,  01   no   more  validity  than  waste   paper. 

If  it  be  voidable  merely,  or  if,   though  void,  the  fact  does 

not  appear  on  the  face  of  the  process,  especially  if  the  officer 

does   not   know   that   the   process  is  void,  it  will   afford   a 

protection  to  the  person  who  serves  it.^ 

411.  Now  a  writ  will  be  void  on  its  face  (1)  if  it  be  ma- 
terially  defective   in   language;    an   example    of 

,  .   ,  ,  .         T  ,  ,     When  process 

which  may  be   seen   m   the   case   above    stated,  is  void. 

where  the  writ  failed  to  show  who  was  intended. 

412.  A  writ  will  be  void  on  its  face  (2)  if  the  whole  pro- 
ceeding in  which  it  was  issued  was  beyond  the  jurisdiction  of 
the  court  granting  it.  For  example:  The  defendant  exe- 
cutes a  warrant  against  the  plaintiff  for  the  collection  of  road 
taxes;  the  warrant  being  issued  by  a  justice  of  the  peace 
who  has  no  authority  over  such  taxes.  The  writ  is  void,  and 
the  defendant  is  liable  for  false  imprisonment.^ 

413.  A  writ  will  be  void  on  its  face  (3)  where  the  court, 
though  having  jurisdiction  over  the  subject-matter  of  a  pro- 
ceeding, has  no  authority  to  institute  suit  by  a  warrant.  For 
example :  The  defendant,  an  officer,  executes  a  warrant  for 
the  arrest  of  the  plaintiff  in  a  complaint  for  the  non-payment 
of  wages.  The  court  issuing  the  writ  has  jurisdiction  over 
such  cases,  but  has  no  power  to  issue  a  warrant;  a  summons 
being  the  only  j)rocess  allowed.  The  writ  is  void,  and  the 
defendant  is  liable.^ 

414.  In  such  cases,  the  writ  showing  its  invalidity  upon  its 
face,  the  officer  is  not  bound  to  serve  the  process.     The  effect 
of  the  second  and  third  of  these  rules  is  to  require  officers  must 
the  officer  to  know  the  general  extent  of  the  juris-  ^^1°^  the 

T     .  r    1  1  •   1    1      •  •  T-i        1         general  juris- 

diction 01  the  court  which  he  is  serving,     b  urther  diction  of  the 

than  this  the  law  does  not  go ;  and  in  other  cases  ''°'^^^' 

the  officer  will  be  protected,  though  his  writ,  being  void- 

1  Tarlton  v.  Fisher,  2  Doug.  671 ;  Deyo  v.  Van  Valkenburgh,  5  Hill, 
242. 

2  Stephens  v.  Wilkins,  6  Barr,  260. 

*  Shergold  v.  HoUoway,  2  Strange,  1002. 


208  LAW   OF  TORTS.  [Part  II. 

able,  is  liable  to  be  set  aside  for  error,  or  even  tliougli  it  is 
actually  void.^  Cases  of  this  kind  are  always  within  the 
limits  of  the  court's  general  jurisdiction;  and  the  officer  is 
not  liable,  since,  though  bound  to  know  the  extent  of  the 
court's  jurisdiction,  he  is  not  presumed  to  know  the  nature 
and  propriety  of  all  the  proceedings  in  a  cause.  If  the 
officer  does  in  fact  know  that  the  court  has  no  jurisdiction, 
then,  by  some  authorities,  the  process  is  deemed  to  be  void  on 
its  face ;  ^  but  the  better  rule  is,  that  an  officer  should  not  be 
permitted  to  refuse  to  serve  process  because  merely  of  his  own 
knowledge  —  or  interpretation  of  facts,  for  that  is  what  it 
would  come  to.  Hence  he  should  not  be  liable  for  serving 
the  process  in  such  a  case.'^ 

415.  If  his  writ  does  not  indicate  its  invalidity  on  its  face, 
the  officer  is  ordinarily  safe,  though  the  writ  ought  not  to 
have  issued. 

416.  To  put  the  case  in  the  form  of  a  more  general  propo- 
sition, as  laid  down  upon  great  consideration,  a  ministerial 
_  officer  is  protected  in  the  execution  of  process. 

Process  ^  ■>■  ' 

within  the        whether  the  same  issues  from  a  court  of  limited 

diTtionVnhe"  ^^  ^^  general  jurisdiction,  though  such  court  have 
court,  but  in-  not  in  fact  authority  in  the  particular  instance, 
va  1  m  ac  .  ppgyided  that  on  the  face  of  the  process  it  appears 
that  the  court  has  jurisdiction  of  the  subject-matter,  and 
nothing  appears  therein  to  apprise  the  officer  that  the  court 
has  not  authority  to  order  the  arrest  of  the  party  named  in 
the  process.  For  example:  The  defendant,  a  constable, 
arrests  the  plaintiff  under  a  warrant  from  a  justice  of  the 
peace  issued  upon  a  judgment  against  the  plaintiff  in  an 
action  within  the  jurisdiction  of  the  court.  The  court  has 
authority  in  such  cases  to  issue  a  warrant,  but  in  this  partic- 
ular instance  the  suit  ha3  not  been  instituted  by  the  issuance 
of  the  necessary  process  for  the  appearance  of  the  then  de- 

1  See  Deyo  v.  Van  Valkenburgh,  5  Hill.  2i2. 

2  Tellefsen  v.  Fee,  168  Mass.  188,  Knowlton,  J.,  dissenting. 

8  Wilmarth  v.  Burt,  7  Met.  257,  200,  261,  Shaw,  C.  J.;  Tierney  v. 
Frazier,  57  Texas,  437,  440,  441 ;  also  cases  cited  in  Tellefsen  r.  Fee, 
supra. 


Chap.  IX.  §  2.]  FALSE   IMPRISONMENT.  209 

fendant,  now  plaintiff.  The  defendant  has  violated  no  duty 
to  the  plaintiff,  and  is  not  liable,  though  the  court  had  no 
authority  to  issue  the  warrant  under  such  circumstances,  the 
process  not  indicating  the  fact.^  Again:  The  defendant,  an 
officer,  arrests  the  plaintiff,  a  member  of  the  Legislature, 
privileged  at  the  time  from  arrest,  the  writ  not  indicating  the 
fact.     This  is  not  a  false  imprisonment.^ 

417.  The  clerk  of  the  court  (probably)  will  also,  like  the 
officer  who  serves  the  precept,  be  liable  in  case  he  made  out 
the  writ  in  a  defective  form.  He  has  done  that  when  the 
which  he  has  no  right  to  do,  and  is  therefore  for-  ^lerk  is  Hable. 
bidden  to  do;  and  he  must  accordingly  stand  upon  the  same 
footing  with  the  officer. 

418.  The  clerk  may  also  be  liable  when  the  officer  who 
serves  the  writ  is  not  liable.  And  this  will  be  the  case  when- 
ever the  writ,  though  regular  on  its  face  (and  hence  a  justifi- 
cation to  the  officer),  was  issued  without  orders  of  the  court, 
under  circumstances  in  which  such  issuance  is  not  by  law 
allowed.  For  example:  The  defendant,  clerk  of  an  inferior 
court,  issues  a  writ  of  capias  on  which  the  plaintiff  is  arrested, 
without  the  presence  or  intervention  of  the  court,  upon  a 
default  of  the  plaintiff,  as  to  the  granting  of  which  the  law 
requires  that  the  judge  should  exercise  certain  judicial  func- 
tions. The  defendant  is  guilty  of  a  breach  of  duty,  and  is 
liable  to  the  plaintiff;  and  this  too  though  he  only  conformed 
to  the  usual  practice  of  the  court  in  such  cases,  since  a  court 
cannot  delegate  its  judicial  functions.^ 

419.  The  clerk  will  also  (probably)  be  liable,  like  both  the 
officer  and  the  judge,  when  the  writ,  issued  by  order  of  the 
court,  shows  upon  its  face  that  the  whole  cause  was  without 
the  jurisdiction  of  the  judge.  It  will  be  different  however 
if,  while  the  proceeding  was  within  the  jurisdiction  of  the 
court,  the  particular  act  merely,  commanded  by  the  court, 
was  in  excess  of  its  jurisdiction,  without  the  clerk's  knoAvl- 

^  Savacool  v.  Boughton,  5  Wend.  170 ;  Cases,  216. 
2  Taiiton  «.  Fisher,  2  Doug.  671. 
*  Audrews  v.  Marris,  1  Q.  B.  3. 

14 


210  LAW  OF  TORTS.  [Part  IL 

edge.  The  clerk  is  merely  a  ministerial  officer,  like  the 
sheriff  or  constable,  and  is  no  more  bound  than  such  officer 
to  know  of  the  legality  of  orders  of  the  court  within  its  juris- 
diction. For  example:  The  defendant,  clerk  of  a  county 
court,  by  order  of  the  judge  signs  and  seals  a  warrant  for  the 
arrest  and  imprisonment  of  the  plaintiff  for  a  period  of  thirty 
days,  after  a  certain  date,  upon  failure  to  conform  fo  an  order 
of  court ;  when  the  order  of  commitment  should  have  required 
an  earlier  arrest.  The  defendant  is  not  liable,  though  the 
judge  (as  will  be  seen)  would  be.^ 

420.  The  judge  of  an  inferior  court,  if  he  authorizes  the 
arrest,  is  liable  whenever  the  officer,  acting  in  strict  accord- 
When  the  ance  with  his  precept,  is  liable ;  provided  the  pre- 
judge is  liable,  cgpt  |3g  not;  void  for  defective  language.  As  the 
judge  does  not  make  out  tiiie  writ,  he  cannot  be  liable  for 
such  defect;  and  the  clerk  is  not  his  agent  or  servant. ^  In 
other  cases,  that  is  when  the  court  has  not  jurisdiction  of 
the  cause,  the  proceeding  is  coram  non  judice;  the  court  loses 
its  judicial  function,  and  the  judge  becomes  a  mere  private 
citizen.^ 

421.  But  more  than  this,  the  judge  may  be  liable  when  the 
officer  is  not.  This  will  be  true  whenever  the  judge  has 
plainly  exceeded  his  jurisdiction,  though  in  a  matter  not 
affecting  the  officer.  For  example :  The  defendant,  a  justice 
of  the  peace,  fines  the  plaintiff  under  the  game  laws,  as  he 
may  do,  and  then  sends  him  to  jail  without  any  attempt  to 
levy  the  penalty  upon  his  goods,  which  he  has  no  right  to  do. 
He  is  liable  for  false  imprisonment;  though  the  officer  who 
executes  the  writ  is  not.* 

1  Dews  V.  Riley,  11  C.  B.  434. 

2  Carratt  v.  Morley,  1  Q.  B.  18. 

8  The  Marshalsea,  10  Coke,  68  b;  s.  c.  L.  C.  Torts,  278,  note. 

*  Hill  V.  Bateman,  2  Strange,  710.  The  arrest  was  justifiable,  so  far 
as  the  sheriff  was  concerned,  because,  though  in  the  pai'ticular  instance 
unauthorized,  it  was  still  within  the  power  of  the  justice  to  grant  such  a 
writ  in  a  proper  case ;  that  is,  after  an  ineffectual  attempt  to  levy  the 
penalty  upon  the  party's  goods.  The  officer  was  not  bound  to  know 
whether  such  an  attempt  had  been  made.     Possibly  he  might  be  thought 


Chap.  IX.  §2.]  FALSE   IMPRISONMENT.  211 

422.  When  the  question  of  the  court's  jurisdiction  turns 
on  matter  of  fact,  it  is  laid  down  as  well  settled  that  a  judge 
of  a  court  of  record  with  limited  jurisdiction,  or  a  justice  of 
the  peace  acting  judicially,  with  special  and  limited  authority, 
is  not  liable  to  an  action  of  trespass  (of  which  the  action  for 
false  imprisonment  is  an  example)  for  acting  without  juris- 
diction, unless  he  had  the  knowledge,  or  means  of  knowledge 
of  which  he  ought  to  have  availed  himself,  of  that  which 
constitutes  the  defect  of  jurisdiction.^  And  it  lies  upon  the 
plaintiff  in  every  case  to  prove  the  fact.^  For  example:  The 
defendant,  a  justice  of  the  peace,  having  jurisdiction  to 
grant  a  capias  in  certain  classes  of  civil  offences,  committed 
within  his  district,  orders  the  arrest  of  the  plaintiff,  on  suit 
brought  against  him  by  a  third  person,  for  an  offence  com- 
mitted without  his  district.  The  defendant  however  has  no 
knowledge  that  the  act  was  committed  beyond  his  district, 
nor  is  he  put  upon  notice  of  the  fact  by  anything  arising  be- 
fore the  arrest.  He  is  not  liable  for  a  false  imprisonment, ^ 
unless  he  apted  maliciously  and  without  probable  cause. ^ 

423.  When  however  the  question  of  jurisdiction  does  not 
depend  upon  the  proof  of  certain  facts,  but  upon  a  question 
of  plain  law,  the  judge  granting  the  writ  ^  acts  at  his  peril ; 

liable  had  he  known  that  no  such  attempt  had  been  made;  and  this 
knowledge  might  perhaps  have  been  easily  proved.  The  cases  are  con- 
flicting.    See  ante,  p.  208. 

1  Calder  V.  Halket,  3  Moore,  P.  C.  28,  Parke,  B.;  Pease?'.  Chaytor, 
32  L.  J.  Mag.  Cas.  121,  Blackburn,  J. 

2  Calder  t'.  Halket  and  Pease  v.  Chaytor,  supra,  in  which  Carratt  v. 
Morley,  1  Q.  B.  18,  apparently  contra,  is  doubted. 

8  See  Pease  v.  Chaytor,  supra,  opinion  of  Blackburn,  J.,  at  pp.  125, 
126,  from  which  this  example  is  framed.  Another  example  may  be  seen 
in  Lowther  v.  Radnor,  8  East,  113,  119.  A  distinction  must  however 
be  noticed  (which  was  pointed  out  in  Pease  v.  Chaytor)  between  a  pro- 
ceeding to  prevent  the  enforcement  of  a  judgment  in  such  a  case  —  that 
would  be  proper  —  and  an  action  against  the  judge  of  the  court,  as  in 
the  example. 

*  Id.  In  such  a  case,  the  suit  would  properly  be  an  action  for  malicious 
prosecution. 

s  That  is,  the  magistrate  originally  acting;  not,  it  seems,  a  superior 
judge  to  whom  the  case  may  have  been  taken. 


212  LAW   OF   TORTS.  [Part  II. 

and  then  if  he  order  the  arrest  of  an  individual  when  he  has 
no  jurisdiction,  not  determinable  on  facts,  he  will  be  liable 
for  false  imprisonment.  For  example :  The  defendant,  judge 
of  a  court  of  record  of  limited  jurisdiction,  dii-ects  the  arrest 
of  the  plaintiff  for  contempt  of  the  process  of  the  court,  and 
commits  him  to  jail.  The  commitment  is  unauthorized,  and 
is  made  under  a  mistake  of  plain  law  about  the  powers  of  the 
defendant,  and  not  under  mistake  as  to  the  facts ;  the  statute 
requiring  that  the  process  (under  the  circumstances)  should 
have  been  issued  by  the  court  of  another  county.  The  de- 
fendant is  liable.^ 

424.  From  the  statement  of  the  foregoing  principles  and 
examples,   it  will  be  seen  (1)  that  the  officer  alone  may  be 

liable  for  false  imprisonment;  as  where  he  exe- 
cutes his  writ  upon  the  wrong  person,  without 
the  latter's  fault:  (2)  that  the  clerk  alone  may  be  liable ;  as 
where,  without  direction  from  the  judge,  he  issues  a  precept 
regular  in  form,  and  within  the  jurisdiction  of  the  court, 
but  which  he  had  no  right  at  all  to  issue :  (3)  that  the  judge 
alone  may  be  liable ;  as  where,  having  jurisdiction  over  the 
cause,  he  orders  the  issuance  of  the  warrant  under  circum- 
stances in  which  the  act  was  improper:  (4)  that  the  officer 
and  the  clerk  may  be  liable;  as  where  the  writ  contains 
substantially  defective  language:  (5)  that  all  three  may  be 
liable ;  as  where  the  whole  cause,  in  the  course  of  which  the 
writ  is  issued  (at  the  command  of  the  judge),  is  without  the 
jurisdiction  of  the  court. 

425.  This  is  not  all.  The  liability  for  a  false  imprison- 
ment may  extend  to  the  attorney  at  whose  instance  the  pro- 
Liability  of  ceeding  was  begun,  and,  further  still,  to  his  client 
attorney:  act  who  authorized  him  to  begin  it.  Indeed,  this 
false  repre-  will  always  be  the  case  wherever  it  can  be  prop- 
sentations.        gj.jy  gfj^i^]    ^j^^^   ^j-^g  wrongful    imprisonment   was 

ordered  or  participated  in  by  the  client. 

426.  When  the  judge  assumes  the  power  of  ordering  the 
warrant,  upon  a  statement  of  the  grounds,  the  act  (with  the 

1  Houlden  v.  Smith,  li  Q.  B.  841. 


Chap.  IX.  §  2.]  FALSE   IMPRISONMENT.  213 

exception  to  be  stated  presently)  is  his  own,  and  not  the  at- 
torney's or  his  client's;  ^  and  this  too  in  America,  though  the 
writ  were  asked  for  on  false  representations ;  ^  the  attorney 
or  client  has  not  set  a  ministerial  but  a  judicial  othcer  in 
motion.^  If  this  be  the  extent  of  the  connection  of  the  attor- 
ney and  client  with  the  arrest,  neither  can  be  liable,  whether 
the  writ  was  granted  upon  a  mistaken  view  of  the  case  by  the 
judge  in  regard  to  his  jurisdiction  (in  which  case  he  might 
be  liable),  or  was  issued  in  a  materially  defective  form  (in 
which  case  the  clerk  and  the  officer  would  be  liable);  the  act 
is  that  of  another.  Illustrations  may  be  seen  in  the  examples 
above  given.  Hence  the  attorney  and  client  may  not  be 
liable,  though  the  process  was  void  on  its  face.* 

427.  It  is  laid  down  in  England,  contrary  to  recent  Ameri- 
can authority,  that  when  the  warrant  was  issued  under  false 
representations,  or  even  through  mistake  of  counsel  or  client, 
the  act  is  not  the  act  of  the  judge,  unless  he  had  no  jurisdic- 
tion to  grant  the  process,  but  of  the  attorney,  and  of  his 
client  whom  he  represents.^  The  consequence  is,  that  both 
are  there  liable  for  false  imprisonment  upon  the  execution  of 

1  Cooper  V.  Harding,  7  Q  B.  928;  Williams  v.  Smith,  14  C.  B.  n.  s. 
596  ;  Smith  v.  Sydney,  L.  R.  5  Q.  B.  203. 

2  Everett  v.  Henderson,  146  Mass.  89 ;  Cases,  232. 

3  In  this  appears  a  clear  distinction  between  an  action  for  false  im- 
prisonment and  one  for  malicious  prosecution.  '  The  party  making  the 
charge  [before  a  magistrate]  is  not  liable  in  an  action  for  false  imprison- 
ment, because  he  does  not  set  a  ministerial  officer  in  motion,  but  a 
judicial  officer.  The  opinion  and  the  judgment  of  a  judicial  officer  are 
interposed  between  the  charge  and  the  imprisonment.'  Austin  v.  Dowling, 
L.  R.  5  C.  P.  534,  540,  Willes,  J. 

*  Carratt  v.  JMorley,  1  Q  B.  18.  The  author  withdraws  his  criticism 
on  this  case,  made  in  his  Leading  Cases  on  Torts,  p.  280.  The  client 
had  done  nothing  but  to  ask  for  a  writ;  and  the  court,  acting  judicially, 
granted  it.  The  act  was  therefore  the  act  of  the  judge,  and  not  of  the 
party.  The  latter,  to  be  liable,  must  either  have  directed  the  execution 
of  the  writ  after  its  issuance,  or  have  obtained  it  from  the  court  in  an 
irregular  manner,  or  have  participated  in  the  execution  of  it. 

6  Williams  v.  Smith,  14  C.  B.  n.  S.  596  ;  Codrington  r.  Lloyd,  8  Ad. 
&  E.  449  ;  CoUett  v.  Foster,  2  Hurl.  &  N.  356.  See  Davies  v.  Jenkins, 
11  M.  &  W.  745. 


214  LAW   OF   TORTS.  [Part  H. 

the  warrant,  even  though  they  take  no  further  steps  in  the 
matter  than  those  involved  in  obtaining  the  same.^  For 
example:  The  defendants,  attorney  and  client  in  a  former 
suit  against  the  present  plaintiff,  obtain  a  warrant  therein  for 
the  latter's  arrest  upon  material  misrepresentations  made  in 
an  affidavit  upon  which  the  warrant  is  awarded,  on  account 
of  which  misrepresentations  the  warrant  is,  after  the  plain- 
tiff's arrest,  set  aside.  They  are  both  liable. ^  Again:  The 
defendant,  by  his  attorney,  in  a  former  suit  against  the  now 
plaintiff,  procures  the  arrest  therein  of  the  last  named  under 
a  writ  issued  by  mistake  against  a  person  not  bearing  the 
name  of  the  present  plaintiff'.  This  is  a  false  imprisonment, 
and  the  defendant  is  liable,  although  the  person  intended  was 
arrested.^  Again:  The  defendants,  attorney  and  client  in  a 
former  civil  action  against  the  now  plaintiff,  in  which  they 
obtained  judgment  against  him,  obtain  a  warrant  for  the 
arrest  of  the  plaintiff  by  virtue  of  the  judgment,  after  a  dis- 
charge therefrom  of  the  plaintiff  by  proceedings  in  insolvency, 
of  which  the  defendants  had  notice.  They  are  liable  for  false 
imprisonment;  unless  it  can  be  shown  that  the  discharge 
was  obtained  by  fraud.* 

428.  The  attorney,  and  his  client  with  him,  may,  in  other 
cases  also,  become  liable  where  the  arrest  has  been  ordered 
by  the  judge.     Such  a  result  will  come  about  whenever  the 

1  This,  in  England,  appears  to  be  considered  as  irregularity,  which  is 
the  act  of  the  party  and  not  of  the  court.  In  IVIassachusetts,  issuing  the 
writ  on  false  representations  would  be  error,  which  is  the  act  of  the  court. 
Everett  v.  Henderson,  146  Mass.  89  ;  Cases,  232. 

2  Williams  v.  Smith,  14  C.  B.  n.  s.  59G.  The  action  was  not  sus- 
tained in  this  second  suit,  because  the  misrepresentations  were  not 
material. 

«  See  Jarmain  v.  Hooper,  6  Man.  &  G.  827. 

*  Deyo  V.  "Van  Valkenburgh,  5  Hill,  242.  This  is  the  exception 
alluded  to  above,  by  which  the  attorney  and  client  are  liable,  though 
the  judge  has  been  merely  asked  to  grant  the  warrant.  But  it  was  mis- 
conduct to  ask  for  the  warrant  when  it  was  known  that  the  judgment 
had  been  discharged,  unless  proof  could  be  brought  that  the  discharge 
was  fraudulent.  The  judge,  having  no  jurisdiction  to  grant  the  warrant 
in  such  a  case,  would  also  be  liable,  it  seem5. 


Chap.  IX.  §2.]  FALSE   IMPRISONMENT.  215 

attorney  participates  in  an}'  manner   in  effecting  the  arrest 
after  the  issuance  of  the  improper  warrant.     For 
example:  The  defendants,  attorney  and  client  in  attorney  and 
a  former  litigation  against  the  present  plaintiff,  ^^^^^*- 
having  obtained  an  erroneous  warrant  against  the  latter  from 
the  judge,  the  attorney  personally  puts  the  precept  into  the 
officer's  hands,  and  directs  him  to  serve  it.     The  defendants 
are  both  liable ;  the  attorney  because  of  his  personal  interfer- 
ence, the  client  because  bound  by  the  act  of  his  attorney  in 
the  ordinary  course  of  the  litigation.^     Again:  The  defend- 
ant, an  attorney,   indorses  with  his  name   and  residence  an 
invalid   warrant,   issued  against   the    plaintiff.     This  makes 
him  a  participant  in  the  false  imprisonment  which  follows ;  ^ 
and  his  client  also. 


429.  It  will  thus  be  seen  that  there  may  be  cases  in  which 
all  the  parties  named  will  be  jointly  liable,  client,  attorney, 
officer,  clerk,  and  judge.     Such  will  be  the  result 

where  the  attorney  personally  directs  the  officer 

to  serve  a  writ  upon  the  plaintiff,  issued  by  the  judge's  order, 

in  a  civil  cause,  wholly  beyond  the  jurisdiction  of  his  court. 

430.  A  certain  fundamental  difference  between  civil  and 

criminal  cases  should  be  noticed:  the  parties  are  different. 

A  civil  suit  is  a  litigation  between  individuals ;  a 

criminal  suit  is  a  litigation  between  the    public  tween  civil 

and  an  individual.     The  prosecutor  in  a  criminal  and  criminal 

„„  actions, 

action  does  not  represent  the  plaintiff  in  a  civil 

suit.  A  civil  proceeding  is  instituted  in  the  interest  and  for 
the  benefit  of  the  plaintiff,  and  is  under  his  control  through- 
out; the  plaintiff  is  '  dominus  litis.'  False  steps  and  mis- 
conduct on  his  behalf  in  the  course  of  the  litigation  will 
therefore  bind  him,  as  has  already  been  seen.  The  prosecutor 
of  crime  however  is  not  a  party  to  the  litigation  instituted 
by  him.     The  proceeding  is  not  carried  on  primarily  in  his 

1  Barker  v.  Braham,  2  W.  Black.  866 ;  s.  c.  L.  C.  Torts,  235. 

2  Green  v.  Elgie,  5  Q.  B.  99. 


216  LAW  OF  TORTS.  [Part  II. 

interest;  and  he  has  no  control  over  its  course.  The  conse- 
quence is,  he  cannot  be  bound  by  the  action  of  the  attorney- 
general  or  other  prosecuting  officer.  He  may  however  bind 
himself,  and  become  liable  for  a  false  imprisonment  by  acts 
of  his  own,  or  of  counsel  whom  he  may  employ  to  assist  the 
attorney-general.  If  the  prosecutor  or  his  attorney  should 
j)ersonally  direct  the  service  of  invalid  process,  whether 
void  or  only  voidable,  he  would  be  liable  to  the  party 
arrested.^ 

431.  Before  an  action  for  false  imprisonment  under  process 
of  court  can  be  maintained,  it  is  necessary  that  the  process 
Process  should  ^^o^^^^  ^^  set  aside,  unless  it  appear  to  be  abso- 
be  set  aside      lutely  void.     For  if  the  process  be  merely  void- 
ess  voi  .      q]j\q^   it  is  valid  until    quashed;    and   hence  the 

arrest  must,  till  then,  be  legal.  If  however  the  process  be 
absolutely  void,  and  the  action  be  brought  against  the  proper 
party  or  parties,  it  is  not  necessary  (probably),  either  in  cases 
of  civil  or  of  criminal  arrest,  to  have  it  set  aside  before  suing 
for  false  imprisonment.  For  example:  The  defendant  j)ro- 
cures  the  arrest  of  the  plaintiff  on  a  warrant  issued  upon  a 
judgment  which  the  former  knows  to  have  been  discharged; 
and  the  plaintiff  sues  for  false  imprisonment  without  first 
having  the  process  set  aside.  The  action  is  maintainable; 
the  process  being  absolutely  void.^  Again:  The  defendant, 
a  justice  of  the  peace,  procures  the  arrest  of  the  plaintiff 
upon  four  convictions  before  him  of  baking  bread  on  one  and 
the  same  Sunday ;  the  law  permitting  but  one  conviction  in 
such  a  case.  The  defendant  is  liable  for  false  imprisonment, 
though  the  wrongful  convictions  be  not  first  quashed.^ 

432.  In  both  civil  and  criminal  cases  however  the  action 
for  false  imprisonment  is  to  be  distinguished  from  a  suit  for 

1  Hopkins  v.  Crowe,  4  Ad.  &  E.  774. 

2  Deyo  V.  Van  Valkenburgh,  5  Hill,  242. 

8  Crepps  v.  Durden,  2  Cowp.  640.  In  this  case  there  was  no  arrest, 
but  merely  a  levy  on  the  plaintiff's  goods  for  the  amount  of  the  penalty ; 
but  the  principle  would  be  the  same. 


Chap.  IX.  §3.]  FALSE   IMPEISONMENT.  217 

malicious   prosecution.      The   process   under  which   an   im- 
prisonment was  made  may  have  been,  as  regards  jjaiicious 
the  party  or  parties  sued  for  the  tort,  either  void  prosecution 
or  voidable ;  ^  and,  in  such  a  case,  the  action  is    ^^  ^^g^^s  e 
mq,intainable  without  proof  of  malice,  or  of  want  of  probable 
cause,  or  of  the  termination  of  the  prosecution.     In  an  action 
for  malicious  prosecution  however  it  matters  not  whether  the 
writ  was  void,  voidable,  or  valid ;  the  suit  is  for  an  unlawful 
prosecution,  and  to  make  such  a  case  the  plaintiff  must  prove 
the  set  of  facts  just  stated. 

§  3.    Of  Arrests  without  Warrant. 

433.  It  is  not  necessary  however,  in  all  cases,  that  an  arrest 
for  an  infraction  of  the  law  should  be  made  under  authority 
and  by  command  of  a  warrant.     There  are  occa-  occasions  for 
sions  on  which  the  utmost  promptness  of  action  is  acting  with- 
required  for  the  attainment  of  the  ends  of  justice  °^  Process, 
in  the  apprehension  of  law-breakers;  and  the  necessities  of 
society  have  in  such   cases  furnished  a  justification  for  the 
arrest  of   offenders  without  a  formal  warrant  of  a  court  of 
justice.     But  the  law  does  not  encourage  the  making  of  ar- 
rests in  this  manner;  on  the  contrary,  in  the  interest  of  lib- 
erty, it  prefers  a  slower  and  more  deliberate  proceeding  by 
warrant,  issued  upon  solemn  oath  concerning  the  facts,  in  all 
cases  in  which  the  administration  of  justice  can  thus  be  effi- 
ciently carried  out. 

434.  The  occasions  on  which  arrests  without  a  warrant  are 
considered  justifiable  upon  the  above-stated  ground  are  well 
defined.  In  the  first  place,  it  must  be  well  understood  that 
the  right  to  make  such  arrests  is  confined  altogether  to  infrac- 
tions of  the  criminal  law.  In  no  case  can  an  officer  make  an 
arrest  in  a  civil  cause  without  the  protection  of  a  warrant. 
It  may  be  true,  as  has  already  been  stated,  that,  in  cases  of 

^  It  will  be  noticed  that  to  sustain  an  action  against  the  officer  who 
served  the  writ,  or  against  the  clerk,  the  writ  must  have  been  void  on  its 
face;  while  it  is  enough  in  this  respect,  to  sustain  an  action  against  the 
judge  or  attorney  and  client,  that  the  writ  was  only  voidable. 


218  LAW  OF  TORTS.  [Part  II. 

the  release  of  a  prisoner  arrested  on  jnocess  in  a  civil  action, 
the  officer  may  retake  the  party  without  obtaining  a  special 
warrant  for  this  particular  purpose ;  but  that  is  because  he  has 
already  a  warrant,  which  is  still  in  force.  Hence,  the  officer 
does  make  the  arrest  under  a  writ;  and  he  must  justify  his 
act  under  that  writ. 

435.  The  first  case  to  be  mentioned  in  which  an  arrest  can 
be  made  without  a  warrant,  is  when  the  arrest  is  made  upon 
Arrest  on  the  the  spot,  at  the  time  of  the  breach  of  the  peace. 
^P°t-  Such  a  case  comes  directly  within  the  reason 
above  mentioned,  namely,  the  necessities  of  society;  nor 
could  there  be  any  use  of  requiring  an  affidavit  and  warrant 
in  such  a  case,  even  if  the  delay  might  not  be  fatal.  The 
right  thus  to  arrest  on  the  spot  applies  equally  to  all  breaches 
of  the  peace,  whether  the  act  be  a  crime  or  a  misdemeanor. 

436.  An  arrest  without  warrant  may  also  be  made  by  an 
officer  of  the  law,  qualified  for  the  making  of  arrests,  upon 
On  suspicion-  'suspicion  of  felony,'  to  use  a  common  expres- 
probabie  sion  of  the  books.     The  meaning  of  this  is,  that 

-  if  in  an  action  for  false  imprisonment,  without 
warrant  (that  is,  because  without  warrant),  the  officer  can 
show  that,  though  no  felony  was  in  fact  committed,  he  had 
prohahle  cause  to  suppose  that  the  prisoner  had  committed 
such  a  crime,  he  has  violated  no  duty  to  the  plaintiff  in  thus 
making  the  arrest.  For  example :  The  defendant,  a  constable, 
having  probable  cause  to  believe  that  the  plaintiff  is  guilty  of 
the  felony  of  receiving  or  aiding  in  the  concealment  of  stolen 
goods,  arrests  him  without  a  warrant,  and  conveys  him  to 
jail,  where  he  detains  the  prisoner  until  he  can  make  applica- 
tion to  a  magistrate  for  a  warrant  against  him  as  a  receiver  of 
stolen  goods.  The  warrant  is  refused,  and  the  prisoner  at 
once  discharged.     The  defendant  is  not  liable.^ 

437.  In  these  cases,  since  the  officer  has  no  warrant  to  jus- 
tify him,  he  has  to  show  probable  cause  for  the  arrest.     The 

1  Rohan  i\  Sawin,  5  Cush.  281.  Note  that  the  magistrate's  subsequent 
action  has  no  bearing  on  the  officer's  justification  of  probable  cause. 
Compare  ante,  pp.  99,  102,  note  2. 


Chap.  IX.  §3.]  FALSE   IMPRISONMENT.  219 

officer's  action  is  Dot  a  setting  in  motion  of  the  courts,  as  it  is 
in  a  prosecution  by  a  prosecutor  or  plaintiff;  hence  the  differ- 
ence, in  regard  to  proving  probable  cause,  between  a  suit  for 
false  imprisonment  and  one  for  malicious  prosecution. 

438.  The  officer's  '  suspicion  '  must  of  course,  as  above  in- 
timated, be  a  reasonable  ground  to  suppose  the  prisoner  guilty 
of  a  felony;  that  is,  it  must  be  such  a  strong  suspicion  as 
would  justify  a  man  of  caution  in  entertaining  a  belief  of  the 
party's  guilt.  If  the  circumstances  do  not  w^arrant  such  a 
belief,  even  though  in  fact  a  felony  has  been  committed,  the 
officer  violates  his  duty  to  the  plaintiff  by  arresting  him  with- 
out process  of  court. ^  For  example:  The  defendant,  aeon- 
stable,  arrests  and  imprisons  the  plaintiff,  without  process, 
under  the  following  circumstances :  The  cart  of  the  plaintiff, 
a  butcher,  is  passing  along  the  highway,  when  a  person,  in 
the  habit  of  attending  fairs,  stops  the  cart  and  says  to  the 
officer  (defendant),  '  These  are  my  traces,  which  were  stolen 
at  the  peace-rejoicing  last  year.'  The  defendant  asks  the 
plaintiff  how  he  came  by  the  traces.  The  plaintiff  replies 
that  he  saw  a  stranger  pick  them  up  in  the  road,  and  bought 
them  of  him  for  a  shilling;  whereupon  he  is  taken  into  cus- 
tod}^  and,  on  examination  Ijefore  a  magistrate,  discharged. 
This  does  not  show  probable  cause  for  the  arrest,  and  the  de- 
fendant is  liable. 2 

439.  In  the  authority  from  which  this  example  is  taken,  the 
whole  case  was  given  to  the  judges,  with  power  to  act  as  a 
jury  so  far  as  might  be  necessary  for  the  decision  -^nrh  a    "d 

of  the  question  before  them.     It  therefore  does  not  probable 

appear  from  the  decision,  whether  the  question  <'*^^®- 

of  probable  cause  is  to  be  considered  as  a  question  for  the 


1  Process  would  justify  the  officer  in  such  a  case  ;  although  the  grant- 
ing of  it  falls  short  of  a  judicial  finding  that  there  exists  probable  cause^ 
to  believe  the  party  guilty,  —  upon  which,  if  there  were  such  a  finding, 
the  officer  might  in  principle  be  justified  in  acting  even  if  he  were  not 
bound  to  act.  But  acting  without  process,  the  officer  has  to  prove  prob- 
able cause.  The  term  '  probable  cause '  here,  as  in  the  chapter  on  Mali- 
cious Prosecution,  is  used  for  '  reasonable  and  probable  cause.' 

2  Hogg  V.  Ward,  3  H.  &  N.  417;  Cases,  244. 


220  LAW  OF  TORTS.  "  [Part  IL 

judge  or  for  the  jury ;  and  the  point  was  expressly  left  unde- 
cided by  the  judges. 

440.  The  question  has  indeed  been  one  of  some  difficulty. 
In  some  of  the  cases  it  has  been  tacitly  assumed  that  the  jury 
must  determine  whether  the  officer  had  probable  cause  for 
taking  the  plaintiff  into  custody ;  ^  in  others,  that  it  is  for  the 
court  to  say  whether  the  facts  proved  show  proper  cause. ^ 
The  point  has  however  been  decided  in  England  in  accordance 
with  this  latter  view,  though  not  without  expressions  of  re- 
gret;^ making  the  rule  to  conform  to  that  of  actions  for 
malicious  prosecution. 

441.  If  the  analogy  furnished  by  the  law  of  actions  for 
malicious  prosecution  is  to  be  fully  carried  out,  and  it  appears 
reasonable  that  it  should  be,  it  will  also  be  necessary  for  the 
officer  to  show  that  this  reasonable  ground  for  making  the 
arrest  consisted  of  facts  within  his  own  possession  at  the  time 
of  the  arrest,  and  that  he  cannot  justify  on  facts  which  after- 
wards came  to  his  notice.  Nor,  on  the  other  hand,  if  his 
justification  lie  in  the  facts  before  him  at  the  time  of  taking 
the  party  into  custody,  will  his  defence  be  overturned  by 
evidence  of  facts  indicating  innocence,  that  came  to  his  notice 
after  the  imprisonment.^ 

442.  At  common  law,  no  valid  arrest  without  a  warrant  can 
be  made  for  a  misdemeanor,  except  on  the  spot.^  To  arrest 
Arrest  for  a  man,  without  process,  on  suspicion  that  he  has 
misdemeanor,  committed  a  misdemeanor,  although  upon  prob- 
able cause  for  his  arrest,  is  a  breach  of  duty.  For  example : 
The  defendant,  a  constable,  arrests  the  plaintiff  without  a 
writ  on  the  statement  of  J.  M.,  that  the  plaintiff  has  com- 
mitted  the   offence    of   perjury,  by   wilfully  and   corruptly 

1  Beckwitli  v.  Philby,  6  B.  &  C.  635 ;  Rolian  v.  Sawin,  5  Cush.  281 ; 
Brock  way  v.  Crawford,  3  Jones,  433. 

2  Hill  V.  Yates,  8  Taunt.  182  ;  Davis  v.  Russell,  5  Bing.  354. 
8  Lister  v.  Ferryman,  L.  R.  4  H.  L.  521,  531,  538,  539. 

^  See  ante,  p.  99. 

6  "Whether  and  how  far  this  may  have  been  changed  in  regard  to  the 
duties  of  policemen  in  large  cities  cannot  here  be  considered. 


CiiAP.  IX.  §  3.]  FALSE   IMPRISONMENT.  221 

making  a  false  affidavit  in  a  judicial  proceeding  before  the 
Honorable  W.  W.,  judge  of  a  court,  and  he  takes  the  plaintiff 
into  custody  upon  this  charge,  at  the  direction  of  J.  M.  He 
is  liable  to  the  plaintiff  for  a  false  imprisonment ;  ^  though  he 
would  not  have  been  had  the  offence  charged  been  a  felony. 

443.  And  the  arrest  must  not  only  have  been  made  upon  the 
spot;  it  must  also  have  been  made,  in  the  case  of  an  actual 
breach  of  the  peace,  before  the  breach  has  entirely  ceased. 
For  example :  The  defendant,  a  constable,  takes  the  plaintiff 
into  custody  without  a  warrant  under  the  following  circum- 
stances :  The  plaintiff  had  been  making  a  disturbance  about 
certain  premises  in  the  night-time,  and  had  refused,  on  re- 
quest of  the  defendant,  to  desist.  Perceiving  that  the  defend- 
ant intends  to  arrest  him,  the  plaintiff  flees  and  is  pursued, 
overtaken,  and  arrested;  the  disturbance  having  previously 
ceased.     The  defendant  is  liable. ^ 

444.  In  the  case  of  affrays  however  an  arrest  may  be  made 
without  a  warrant  not  only  during  the  actual  breach  of  the 
peace,  but  so  long  as  the  offender's  conduct  shows      ^^^^ 
that  the  public  peace  is  likely  to  be  endangered 

by  his  acts.  Indeed,  while  those  are  assembled  together  who 
have  been  committing  acts  of  violence,  and  the  danger  of  re- 
newal continues,  the  affray  may  be  said  to  continue;  and 
during  the  affray,  thus  understood,  the  officer  may  arrest  the 
offender  not  only  on  his  own  view,  but  even  on  the  informa- 
tion or  complaint  of  another.  This  is  true  even  of  an  arrest 
by  a  private  citizen. ^  For  example:  The  defendant  arrests 
the  plaintiff  without  process  under  the  following  circum- 
stances: The  plaintiff  had  entered  the  defendant's  shop  to 
make  a  purchase,  when  a  dispute  arose  between  the  plaintiff 
and  a  servant  of  the  defendant  resulting  in  an  affray  between 

1  Bowditch  V.  Balchin,  5  Ex.  378.  See  Commonwealth  v.  Carey, 
12  Cush.  246,  252;  Commonwealth  v.  McLaughlin,  id.  615,  618. 

2  Compare  Baynes  v.  Brewster,  2  Q.  B.  375,  where  the  defendant,  on 
such  facts,  was  a  private  citizen ;  but  the  rule  would  have  been  the  same 
had  he  been  an  officer,  as  the  language  of  Mr.  Justice  Williams  in  that 
case  shows. 

3  Timothy  v.  Simpson,  1  Cronip.  M.  &  R.  757;  s.  c.  L.  C.  Torts,  257; 
Baynes  v.  Brewster,  2  Q.  B.  375,  386. 


222  LAW   OF  TORTS.  [Part  II. 

them.  The  defendant,  coming  into  the  shop  during  the 
affray,  orders  the  plaintiff  to  leave,  which  he  refuses  to  do ; 
the  violence  having  then  ceased,  though  there  is  still  danger 
of  a  renewal  of  the  affray.  The  defendant  now  gives  the 
plaintiff  into  the  custody  of  an  officer.  This  is  no  breach  of 
duty  to  the  plaintiff.  ^ 

445.  The  example  given  leads  to  the  consideration  of  the 
nature  of   the  right  of  a  private  citizen  to  arrest  offenders 

without  process  of  court ;  for  it  is  (probably)  law- 
vate  citize""  ^^^^  ^^^^  such  a  person  to  make  an  arrest  upon  a 
to  make  warrant  under  the  same  circumstances  in  which 

an  officer  could  do  so. 

446.  The  rule  of  law  in  regard  to  arrests  for  misdemeanors 
by  private  citizens  is  the  same  as  prevails  concerning  officers ; 
they  are  entitled  to  make  the  arrest  without  process  while  the 
breach  of  the  peace  is  going  on,  or  (in  accordance  with  the 
explanation  given)  still  continues.  And  a  private  citizen  has 
no  right  to  make  an  arrest,  without  process,  for  a  misde- 
meanor after  its  termination,  though  the  breach  of  peace  was 
committed  about  his  own  premises. ^ 

447.  In  regard  to  felonies,  the  rights  of  officers  and  private 
citizens  are  different.  While  an  officer  can  arrest  without  a 
warrant  upon  probable  cause,  though  no  felony  has  been 
committed,  a  private  citizen  can  safely  make  an  arrest  with- 
out a  warrant  only  when  (1)  the  felony  charged  has  actually 
been  committed,  and  (2)  there  was  probable  cause  for  sup- 
posing the  party  arrested  to  be  guilty.  ^ 

1  Timothy  v.  Simpson,  supra. 

2  Baynes  v.  Brewster,  2  Q.  B.  375,  386. 

8  Allen  V.  Wright,  8  Car.  &  P.  522;  s.  c.  L.  C.  Torts,  265.  In  Com- 
monwealth V.  Carey,  12  Cush.  246,  251,  Chief  Justice  Shaw,  in  a  dictum, 
states  the  rule  thus  :  '  A  pi-ivate  citizen,  who  arrests  another  on  a  charge 
of  felony,  does  it  at  the  peril  of  being  able  to  prove  a  felony  actually 
committed  by  the  person  arrested.'  But  that  statement,  which  was  only 
a  dictum,  appears  to  be  a  mere  slip.  See  McCloughan  v.  Clayton,  17  Rev. 
Rep.  669,  and  note  by  original  reporter  Lord  Holt. 


CHAPTER   X. 

TRESPASSES  UPON  PROPERTY. 

Statement  of  the  duty.  A  owes  to  B  the  duty  (1)  not  to 
enter  B's  close  without  permission;  (2)  not  to  take  or  inter- 
fere with  possession  of  B's  chattels,  without  permission ; 
unless,  in  either  case,  A  has  a  better  right  than  B  to  the 
possession  of  the  property. 

The  term  '  close '  signifies  a  tract  of  land,  whether  physi- 
cally enclosed  or  not. 

'  Breaking  and  entering  the  close '  is  an  ancient  term  of 
the  law,  now  nearly  gone  out  of  use,  indicating  an  unlawful 
entry  upon  land.  The  term  '  entry '  or  '  unlawful  entry  '  will 
be  used  in  the  present  chapter  as  synonymous  with  '  breaking 
and  entering.' 

§  1.   What  must  be  Proved. 

448.  A  trespass  to  land  is  an  unlawful  entry  upon  land  ;  a 
trespass  to  goods  is  an  unlawful  taking  or  interfering  with 
the  possession  of  goods.  All  other  wrongful  acts  connected 
with  the  trespass  are  aggravation  of  the  wrong.  Accord- 
ingly, to  prove  an  unpermitted  entry  upon  land  in  the 
plaintiff's  possession,  or  the  interrupting  of  the  plaintiff's 
possession,  or  right  to  take  possession,  of  goods,  is  necessary 
to  make,  and  will  make,  a  presumptive  case. 

§  2,   Of  Possession. 

449.  In  order  to  maintain  an  action  solely  for  damages  for 
a  trespass  to  land,  and  not  merely  for  the  recovery  of  the 
land,  it  is  necessary,  apart  from  statute,  for  the  possession 
plaintiff  to  have  had  possession  of  the  premises  actions  for 
entered  at  the  time  of  the  entry.  A  person  who  ^®^P^^^- 
enters  the  land  of  another  without  the  latter's  permission, 
the  latter  having  before  been  unlawfully  deprived  of  posses- 


m 


224  LAW  OF  TORTS.  [Part  II, 

sion  or  the  land  having  never  been  in  his  possession,  may 
indeed  violate  a  duty  to  the  person  entitled  to  the  possession ; 
but  the  common  law  requires  the  latter  to  get  possession  of 
the  land  before  giving  him  damages  for  the  wrong  com- 
mitted. By  statute,  the  owner  may  sue  for  possession  and 
damages  in  one  action.^ 

450.  If  however  the  party  had  possession  at  the  time  of 
the  entry,  and  the  trespasser  ejected  him,  it  would  not  be 
necessary  for  him  to  recover  possession  before  he  could  sue 
for  damages  for  the  wrongful  entry  and  expulsion  ;  he  had 
possession  at  the  time  of  the  trespass  and  disseisin,  and  that 
is  sufficient  for  the  purposes  of  such  an  action.^  He  could 
not  however  recover  damages  for  the  loss  sustained  by 
reason  of  the  disseisor's  occupancy,  until  after  a  re-entry,'^ 
or  suit  for  recovery  of  possession,  —  a  point  to  be  further 
considered  hereafter. 

451.  On  the  other  hand,  possession  at  the  time  of  the 
entry,  if  held  under  a  claim  of  right,  is  prima  facie  sufficient 
Possession  i^^  ^^^  cases  to  enable  a  person  to  maintain  an 
without  right,  action  for  an  entry  uj)on  the  land  without  his 
permission ;  and  possession  alone  is  not  only  prima  facie  but 
absolutely  sufficient  against  all  persons  who  have  not  a  better 
right  than  the  possessor,*  It  follows  that  one  who  is  in 
possession  of  land  under  a  claim  of  title,  though  without 
right,  may  recover  for  an  entry  by  a  wrongdoer;  that  is,  by 
one  who  enters  without  a  rioht,  or  under  one  not  havino-  a 
better  right.  For  example :  The  defendant  enters  without 
permission  upon  land  in  the  possession  of  the  plaintiff,  whose 
possession  is  under  a  void  lease.     The  defendant  is  liable.^ 

1  In  some  States,  if  the  owner  sue  for  possession,  he  must  claim  his 
damages  in  the  same  action,  or  he  will  be  barred  of  the  right  to  recover 
them.  Rajmiond  v.  Andrews,  6  Cush.  265.  See  Leland  i\  Tousey,  6 
Hill,  328.  If  possession  however  is  obtained  without  suit,  an  action  for 
damages  is  maintainable.     Leland  r.  Tousey,  supra. 

2  Case  V.  Shepherd,  2  Johns.  Cas.  27.  ^  Id. 

4  Cotenancy  makes  an  exception.     See  post,  p.  231. 

5  Graham  v.  Peat,  1  East,  244.  '  Any  possession  is  a  legal  possession 
against  a  wrongdoer.'  Loi'd  Kenyon.  See  Cutts  v.  Spring,  15  Mass.  135; 
s,  c.  L.  C.  Torts,  341. 


Chap.  X.  §  2.]  TRESPASSES   UPON   PROPERTY.  225 

452.  But  as  above  implied,  the  defendant  is  not  necessarily 
guilty  of  breach  of  duty  to  such  a  possessor  by  reason  of  the 
fact  that  he  (defendant)  does  not  own  the  land.  He  may 
still  have  a  legal  or  an  equitable  interest  in  the  premises ; 
he  may  be  a  lessee  of  the  land ;  he  may  be  a  trustee  of  the 
estate  or  the  cestui  que  trust ;  or  he  may  be  a  licensee  of  one 
having  a  right  of  entry.  In  any  of  these  cases  he  would  be 
entitled  to  enter  upon  the  premises,  if  he  could  do  so  without 
breaking  the  peace.  A  licensee  of  one  having  possession 
may  make  a  peaceable  entry  against  a  wrongdoer,  though  a 
licensee  has  no  interest  whatever  in  the  soil,  and  could  have 
no  entry  against  the  will  of  a  person  entitled  to  the  possession. 
For  example  :  The  defendant  enters,  without  permission  of 
the  plaintiff,  premises  of  which  the  plaintiff  is  wrongfully  in 
possession  ;  the  act  being  done  by  direction  of  the  owner 
of  the  land,  who  is  entitled  to  possession.  The  defendant 
violates  no  duty  to  the  plaintiff ;  ^  though  the  case  would 
have  been  different  had  he  entered  w^ithout  authority  of  the 
owner.2 

453.  If  there  be  two  persons  in  a  close,  each  asserting 
that  the  premises  are  his,  and  each  doing  some  act  in  the 
assertion  of  the  right  of  possession,  he  who  has  Contested 
the  better  title  or  right  is  considered  as  being  in  possession, 
possession  ;  and  the  other  is  a  trespasser.^  The  former  is 
therefore  in  a  position  to  demand  damages  of  the  latter  for 
his  wrongful  entry.  For  example  :  The  defendant  is  in  pos- 
session of  land  without  right,  and  so  continues  after  the 
plaintiff,  who  is  the  owner,  enters  to  take  possession,  plough- 
ing the  land.  The  defendant  is  guilty  of  trespass  to  the 
plaintiff.*  Again:  The  defendant  is  in  occupancy  of  land 
jointly  with  the  plaintiff,  claiming  to  be  a  tenant  in  common 

^  Chambers  v.  Donaldson,  11  East,  65. 

2  The  subject  of  rights  of  entry  in  general  will  be  considered  here- 
after, §  3.  It  is  introduced  hei'e  merely  to  show  the  consequences  of 
possession. 

8  See  Reading  v.  Royston,  2  Salk.  423. 

4  Butcher  v.  Butcher,  7  B.  &  C  399. 

15 


226  LAW  OF  TORTS.  [Part  II. 

of  the  premises  with  the  plaintiff.  His  cLiim  however  is 
unfounded,  and  the  phiintiff  is  owner  of  tlie  close.  The 
defendant  may  be  treated  by  the  plaintiff  as  a  trespasser.^ 

454.  If  neither  of  the  parties  in  occupancy  has  a  right  to 
the  close,  the  question  whether  either  of  them  has  violated  a 
duty  to  the  other,  supposing  each  to  claim  possession,  will 
turn  upon  the  '  exclusive  priority  of  possession.'  The  one 
who  first  entered,  if  he  took  exclusive  possession,  will  be 
entitled  to  damages  against  the  other ;  if  he  did  not  so  take, 
neither  can  recover '  against  the  other.  For  example :  The 
defendants  claim  a  right  to  take  cranberries  in  an  unoccupied 
field  under  a  license  from  one  H.  The  plaintiffs  have  previ- 
ously entered  into  possession  of  the  land,  and  forbidden  all 
persons  by  public  notice  to  take  cranberries  therefrom,  except 
on  certain  conditions,  with  which  the  defendants  do  not 
comply.  H,  under  wliom  the  defendants  claim,  had  entered 
before  the  entry  of  the  plaintiffs ;  but  neither  H,  nor  the 
defendants,  nor  the  plaintiffs  have  any  right  to  the  soil  or 
the  berries  ;  and  neither  ever  had  exclusive  possession.  The 
defendants  have  violated  no  duty  to  the  plaintiffs ;  ^  and  so 
in  the  converse  case.^ 

455.  There  is  this  important  distinction  between  the  law 
relating  to  possession  of  real  property  and  that  relating  to 
Possession  of  possession  of  personalty ;  to  enable  a  plaintiff  to 
personalty.  recover  for  trespass  to  realty,  he  must  have  had 
a  real  possession  ;  *  while  a  plaintiff  may  recover  for  trespass 
to  personalty  if  he  had  a  right  to  take  possession,  —  in  which 
case  he  is  said  to  have  constructive  possession.  To  assimilate 
the  two  cases,  it  is  often  said  that  the  right  to  take  possession 
of  personalty  draws  possession  in  law.  Whoever  then  has 
a  right  to  the  possession  of  a  chattel,  whether  it  be  towards 
all  the  world  or  only  towards  the  defendant,  is  in  a  position 

1  Hunting  v.  Russell,  2  Cush.  145. 

2  Barnstable  r.  Thacher,  3  Met.  239.  «  Id. 

*  There  is  one  exception,  the  case  of  possession  of  land  by  what  is 
called  '  relation; '  of  that,  further  on.  See  p.  233.  That  is  the  one  true 
case  of  constructive  possession  of  realty,  in  regard  to  trespass. 


Chap.  X.  §  2.]  TRESPASSES  UPON  PROPERTY.  227 

to  sue  for  an  interruption  of  his  enjoyment  thereof.  For 
example  :  The  defendant,  without  permission,  takes  goods 
out  of  the  possession  of  A,  after  A  has  sold  them  to  the 
plaintiff,  but  before  they  have  been  delivered  to  him.  This 
is  a  breach  of  duty  to  the  plaintiff.^ 

456.  What  constitutes  real  possession  however,  as  distin- 
guished from  a  right  to  take  possession,  is  one  of  the  difficult 
questions  of  the  law,  especially  when  it  comes  to  Meaning  of 
the  application  of  definition  to  particular  cases,  possession. 
Contact  certainly  is  not  necessary;  it  is  enough  for  a  man, 
so  far  as  that  is  concerned,  that  no  one  else  has  possession, 
and  that  he  has  in  consequence  power  to  take  the  property 
in  hand  at  will.  Indeed,  a  man  who  is  holding  property  of 
right  has  possession,  against  one  who  may  be  struggling  or 
striving  against  him  or  others,  on  the  spot  or  in  court,  to 
gain  possession ;  this  follows  from  what  has  already  been 
stated. 

457.  That  conception  of  the  term  possession  which  on  the 
whole  most  nearly  harmonizes  with  the  authorities  on  specific 
situations  where  there  is  no  strife  over  the  right,  appears  to 
be  this :  there  must  be  (1)  a  power  of  control  over  property, 
and  (2)  a  purpose  to  exercise  the  same  for  the  benefit,  at  the 
time,  of  the  holder,  or  facts  from  which  such  a  purpose  could 
be  assumed  if  the  mind  were  directed  to  the  object  of  posses- 
sion.2     j^  jg  clear  that  without  these  two  facts  there  is   no 


1  Bacon's  Abr.  Trespass  C.  2  ;  L.  C.  Torts,  370.  Quaere,  whether 
possession  of  personalty  in  itself  will  support  an  action,  as  e.  g.  the  pos- 
session of  a  thief  who  is  dispossessed  by  another  thief?  It  is  urged  that 
mej-e  possession  is  enough.  Pollock  &  Wright,  Possession,  fil,  9.3,  117, 
148.  It  may  on  the  other  hand  be  urged  that  only  that  sort  of  possession 
which  is  capable  of  ripening  into  a  title  should  be  protected,  as  e.  g. 
the  possession  of  a  finder.  In  the  Roman  law  a  thief  could  not  have  the 
« actio  furti.'  Dig.  47,  2,  11  ;  id.  47,  2,  12,  1  ;  Inst.  4,  1,  13.  See  also 
Buckley  v.  Gross,  3  Best  &  S.  566,  573,  Crompton,  J.  As  to  the  criminal 
law  of  such  cases  see  Commonwealth  s.  Roui-ke,  10  Cush.  397,  399  ; 
Pollock  &  Wright,  Possession,  118  et  seq. 

2  Compare  London  Banking  Co.  v.  London  Bank,  21  Q.  B,  D.  535, 
542 ;  and  see  Regina  v.  Ashwell,  16  Q.  B.  D.  190. 


228  LAW   OF   TORTS.  [Part  II. 

true  possession  in  the  eye  of  the  Law  ;  but  to  say  that  there 
is  possession  in  all  cases  with  them  would  be  to  say  that 
the  authorities  are  in  harmony.  A  mere  servant  may  have 
'  detention '  or  custody,  but,  as  servant,  can  have  no  posses- 
sion, according  to  current  views,  because  a  servant  does  not 
hold  in  his  own  right ;  ^  but  what  of  an  agent,^  or  a  bailee  for 
hire,  or  a  tenant  at  will  ?  The  authorities  are  not  agreed. 
It  is  said  that  none  of  them  has  possession.  Thus,  some  say 
of  tenants  at  will,  that  both  tenant  and  landlord  cannot  be 
in  possession  at  the  same  time,  and  the  landlord  certainly  is 
possessed  in  contemplation  of  law.  Others  treat  both  as 
having  the  r{(/hts  of  possessors ;  and  this  appears  to  be  the 
legal  view.^  Agents  and  bailees  for  reward  have  possession, 
by  the  better  view.*  Indeed  any  bailee  liable  over  to  his 
bailor  may,  it  seems,  maintain  trover.^ 

458.  Knowledge  of  the  right  appears  to  be  unnecessary  to 
possession  ;  if  a  thing  of  value  is  delivered  for  me,  I  am 
presumed  to  accept  it  until  I  refuse.  The  deliver}^,  whether 
I  know  it  or  not,  is  significant  of  my  possession ;  enough 
that  no  one  else  has  possession.^ 

1  Year  Book,  13  Edw.  4,  9,  10,  pi.  5;  21  Hen.  7,  14,  pi.  21;  Harris 
V.  Smith,  3  Serg.  &  R.  20 ;  Hampton  v.  Brown,  13  Ired.  18.  These  are 
all  common-law  authorities ;  but  the  point  is  not  free  from  doubt.  See 
Holmes,  Common  Law,  226-228 ;  Moore  v.  Robinson,  2  B.  &  Ad.  817 ; 
Mathews  v.  Hursell,  1  E.  D.  Smith,  393 ;  Regina  v.  Ashwell,  16  Q.  B.  D. 
190. 

Perhaps  a  reason  in  regard  to  the  case  of  the  servant  is  that  his  inter- 
est is  too  slight ;  de  minimis  iion  curat  lex.  Then  the  criminal  side  of 
the  case  may  be  noticed ;  if  the  servant  has  possession,  the  possession 
has  been  given  to  him  by  his  master,  and  he  cannot  be  guilty  of  larceny. 

2  See  Knight  v.  Legh,  4  Bing.  589,  Best,  C.  J.,  holding  that  an  agent 
might  bring  trover,  as  having  possession. 

8  See  Starr  v.  Jackson,  11  Mass.  519,  where  the  cases  are  reviewed; 
and  see  Markby,  Elements  of  Law,  §  388,  3d  ed.  Tenant  at  will  clearly 
holds  for  himself  while  he  wills  and  is  permitted  to  hold. 

4  As  to  bailees  see  Claridge  v.  Tramways  Co.,  1892,  1  Q.  B.  422. 

6    Id. 

'  It  seems  then  that  if  an  article  is  delivered  to  my  servant,  to  be 
taken  to  me,  and  he  makes  off  with  it,  with  felonious  intent,  he  is  guilty 
of  larceny  from  me.  It  was  his  felonious  act,  not  the  delivery  of  the 
article  to  him,  that  gave  him  possession. 


Chap.  X.  §  2.]  TRESPASSES   UPON  PROPERTY.  229 

459.  A  reversioner  or  remainder-man  after  an  estate  for 
years  can  indeed  maintain  an  action  for  injuries  done  to  his 
interest,  notwithstanding  the  fact  that  the  hind  is    _ 

in  the  possession  of  the  termer.  Injuries  done  to  and  remain- 
such  interests  are  not  however,  in  strictness  of  ^^""i^'^- 
common-hiw  ideas,  trespasses.  The  trespass  consists  in  the 
wrongful  entry  upon  the  hind,  and  this  is  a  tort  to  the  tenant, 
and  not  to  the  landlord  or  remainder-man ;  since  it  is  an 
interference  with  the  possession,  which  belongs  to  the  tenant. 
For  example :  The  defendant  enters  upon  the  plaintiff's  land, 
let  for  years,  in  the  assertion  of  a  right  of  way,  driving 
thereon  his  horses  and  cart,  and  continuing  so  to  do  after 
notice  from  the  plaintiff  to  quit.  The  defendant  has  violated 
no  duty  to  the  plaintiff.^ 

460.  Damage  done  to  the  inheritance  in  the  case  of  lease- 
hold or  mortgaged  land  is  waste  if  committed  by  the  tenant 
or  mortgagor,  and  a  tort  which  may  be  deemed  to 

be  in  the  nature  of  (but  not  strictly  as)  a  tres- 
pass, if  committed  by  a  stranger.  But  whatever  term  may 
be  applied  to  the  act,  it  is  a  breach  of  duty  to  the  landlord 
or  mortgagee,  for  which  he  is  entitled  to  recover  damages. 
For  example :  The  defendant,  a  tenant,  or  a  mortgagor,  or  a 
licensee,  or  a  stranger,  cuts  down  trees  on  land  owned  by  the 
plaintiff,  or  of  which  he  is  mortgagee  or  remainder-man,  with- 
out the  plaintiff's  consent.  This  is  a  breach  of  duty  to  the 
plaintiff,  and  the  defendant  is  liable  to  him  in  damages; 
though  the  plaintiff  is  not  in  possession.^ 

461.  A  similar  rule  of  law  prevails  in  regard  to  injuries 
done  to  personal  property  held  on  lease  or  on  pledge,  or  by 
a  mortgagor  in  possession.     For  an  injury  done  personal 

to  the  possessor's  interest  merely,  that  is,  for  a  property  held 

11        (-11-  c     ^  ^        ^  ,on  lease  or 

Simple  unlawful  taking  of  the  goods,  the  remedy  pledge. 

1  Baxter  v.  Taylor,  4  B.  &  Arl.  72.     The  action  was  'case.' 

2  See  Young  v.  Spencer,  10  B.  &  C.  145 ;  Page  v.  Robinson,  10  Cush. 
99;  Cole  v.  Stewart,  id.  181.  None  of  these  are  cases  of  actions  by  re- 
mainder-men, but  they  cover  such  cases  in  principle.  The  form  of  action 
at  common  law  is  '  case  '  and  not  trespass. 


230  LAW   OF  TORTS.  [Part  II. 

belongs  to  the  possessor  alone  ;  but  for  an  injury  done 
to  the  reversion,  or  to  tlie  mortgagee  if  the  goods  be  mort- 
gaged, the  landlord  or  the  mortgagee  is  entitled  to  treat  the 
act  as  a  breach  of  duty  to  him  and  call  for  redress.^  For 
example :  The  defendant  levies  on  and  sells  goods  in  the 
possession  of  S,  whose  right  to  the  possession  rests  upon  an 
agreement  by  the  plaintiif  to  convey  the  same  to  him  upon 
the  payment  of  notes  given  therefor.  The  defendant  has 
not  been  led  by  the  plaintiff  to  suppose  that  the  goods  belong 
to  S  ;  on  the  contrary,  the  defendant  has  notice,  at  the  time 
of  the  levy,  of  the  plaintiff's  title.  The  defendant's  act  in  dis- 
posing of  the  goods  is  a  breach  of  duty  to  the  plaintiff,  and  he 
is  liable  in  damages  ;  though  the  right  of  possession  is  in  S.^ 

462.    A  man's  close  includes  not  only  his  actually  enclosed 

land,  but  also  all  adjoining  unenclosed  lands  held  by  him; 

and,  if  he  is  in  possession  of  any  part  of  his  prem- 
Extent  of  con-    .  ,       .     .  .  j.  .-,  ,     ,  ,  ,  ■• 

troi:  unen-  ises,  he  IS  m  possession  01  the  whole,  unless  other 
closed  land.  parts  are  occupied  by  tenants  for  term  of  years  or 
by  persons  who  claim  adversely  to  him.  The  owner  has  the 
'  power  of  control '  and  the  '  purpose  to  exercise  the  same  '  for 
himself;  he  is  therefore  in  a  proper  position  to  recover  dam- 
ages for  trespasses  committed  in  any  part  of  his  premises,  the 
unenclosed  as  well  as  the  enclosed. ^  For  example:  The  de- 
fendant, without  permission,  enters  and  cuts  timber  in  an 
open  woodland  of  the  plaintiff,  adjoining  a  farm  upon  which 
the  plaintiff  resides.  The  plaintiff  is  in  possession  of  the 
woodland,   and  is  entitled  to  recover.^ 

1  In  '  case,'  or  trover,  at  common  law.  See  Farrant  v.  Thompson, 
5  B.  &  Aid.  826,  where  trover  was  brought. 

2  Ayer  v.  Bartlett,  9  Pick.  156. 

3  Such  possession  is  often  called  '  constructive,'  but  that  term,  like  the 
term  '  symbolical  '  possession,  is  apt  to  darken  counsel.  Possession  is 
surely  real  when  one's  control  can  be  extended  over  the  property  at  any 
time.     See  Markby,  Elements  of  Law,  §§  353,  359,  360,  3d  ed. 

*  Machin  v.  Geortner,  14  Wend.  239;  Penn  r.  Preston,  2  Rawle,  14; 
Jones  V.  Williams,  2  M.  &  W.  326,  331 ;  Lord  Advocate  v.  Blantyre, 
4  App.  Cas.  770,  791 ;  Coverdale  v.  Charlton,  4  Q.  B.  D.  104,  118.  '  I 
hold  that  there  is  no  usage  of  the  country,  nor  rule  of  the  common  law, 
nor  any  reason  requiring  a  man  to  enclose  his  timber  land,  and  that  for 


Chap.  X.  §  2.]  TRESPASSES   UPON   PROPERTY,  231 

463.  The  foregoing  proposition  in  regard  to  possession  of 
adjoining  unenclosed  land  supposes  that  the  party  injured  has 
a  right  to  the  possession  of  the  enclosed  premises  actually 
occupied  by  him.  One  however  who  is  in  possession  of  land 
without  title  or  right  can  have  no  such  extended  possession ; 
the  rights  of  a  bare  possessor  are  limited  by  the  bounds  of  his 
immediate  occupation  and  control.  For  example:  The  de- 
fendant, having  wrongful  possession  of  the  south  end  of  a  lot, 
cuts  timber  upon  the  north  end  thereof,  lying  without  the 
limits  of  his  actual  occupation;  which  timber  has  been  pur- 
chased and  duly  marked  by  the  plaintiff.  The  land  on  which 
the  timber  stood  is  not  in  the  possession  of  the  defendant, 
and  the  plaintiff  is  entitled  to  damages  for  the  violation  of 
his  right  of  property ;  though  he  has  no  right  to  the  land.  ^ 
Again:  The  defendant,  without  right  or  authority,  enters 
upon  an  open  woodland  adjoining  enclosed  land  in  the  wrong- 
ful possession  of  the  plaintiff.  The  act  is  no  breach  of  duty 
to  the  plaintiff.^ 

464.  One  of  several  cotenants,  whether  of  real  or  of  per- 
sonal property,  cannot  maintain  an  action  for  acts  relating  to 
the  common  property,  not  amounting  to  an  ouster ; 

because  all  the  cotenants  have  equal  rights  of 
possession  and  propert}'.  For  example:  The  defendant, 
cotenant  of  land  with  t)ie  plaintiff,  cuts  and  carries  away 
therefrom  timber,  at  the  same  time  denying  to  the  plaintiff 
any  right  in  the  premises,  but  not  withholding  possession  from 
him.     The  defendant  has  violated  no  duty  to  the  plaintiff.^ 

465.  If,  in  the  case  of  real  estate,  the  act  of  the  defendant 
however  amount  to  an  ouster  of  the  plaintiff  from  the  posses- 

ariy  possible  purpose  that  can  be  named  the  woods  belonging  to  a  farm 
are  as  well  protected  by  the  law  without  a  fence  as  with  one.'  Tod,  J., 
in  Penn  v,  Preston,  supra. 

1  Buck  V.  Aiken,  1  Wend.  460.  The  plaintiff  became  possessed  of  the 
trees  as  soon  as  they  were  cut  down  by  the  defendant. 

2  It  is  difficult  to  find  judicial  authority  for  this  example,  because, 
perhaps,  of   its  simplicity.     Its  correctness  is  clear. 

3  Filbert  v.  Hoff,  42  Penn.  St.  07;  Heading's  Case,  1  Salk.  392. 


232  LAW   OF   TORTS.  [Part  IL 

sion  of  the  common  property,  the  act  is  a  trespass,  and  the 
defendant  is  liable ;  provided,  at  least,  an  action  of  ejectment 
would  at  common  law  be  maintainable.  For  example:  The 
defendant,  being  cotenant  with  the  plaintiff  of  a  certain  room 
in  a  coffee-house,  expels  therefrom  the  plaintiff's  servant,  in 
derogation  of  the  plaintiff's  right  of  occupation.  The  defend- 
ant is  liable  to  the  plaintiff  in  damages ;  since  an  action  of 
ejectment  for  restoration  to  possession  would  lie.^ 

466.  Whatever  amounts,  or  if  persisted  in  might  amount, 
to  an  effectual  privation  of  the  associate  tenant  of  partici- 
Ouster  and  pation  in  the  possession  of  the  common  property 
ejectment.  amounts  to  an  ouster,  even  though  there  be  no 
actual  expulsion  or  withholding  of  possession  from  him.  For 
example:  The  defendant,  cotenant  with  the  plaintiff  of  a 
certain  close,  digs  up  the  turf  and  carries  it  away,  without 
the  plaintiff's  consent.  This  is  an  ouster,  for  which  the  de- 
fendant is  liable  to  the  plaintiff  in  damages;  since,  if  the 
cotenant  were  permitted  to  take  the  turf,  he  would  be  entitled 
to  dig  away  the  soil  below  the  turf,  and  might  thus  effectually 
deprive  his  fellow  of  his  right  to  the  possession.^ 

467.  If  the  criterion  of  this  remedy  between  cotenants  for 
an  ouster  be  the  question  whether  an  ejectment  would  be 
maintainable,  it  follows  that  an  action  for  trespass  in  respect 
of  (/oods  held  in  common  cannot  be  maintained  by  one  co- 
tenant  against  another;  for  an  action  of  ejectment  lies  for 
the  recovery  of  land  only.  Nor  indeed  is  there  any  authority 
in  opposition  to  this  suggestion;  the  question  of  the  right  of 
action  having,  so  far  as  the  reported  authorities  go,  always 
ai-isen  in  regard  to  common  rights  in  realty.  ^     Some  decisions 

1  Murray  v.  Hall,  7  C.  B.  441 ;  Cases,  282.  Ejectment  was  originally 
an  action  of  trespass,  and  was  always  deemed  to  include  trespass.  Hence, 
if  that  form  of  remedy  may  be  used,  trespass  lies. 

2  Wilkinson  i'.  Haygarth,  12  Q.  B.  837.  The  defendant  would  not 
have  been  liable  to  an  action  for  tre.ymss  for  taking  and  carrying  away 
the  growing  grass  or  crops.  Id.  Accounting  between  cotenants  was 
provided  for  by  4  Anne,  c.  16,  §  27,  where  one  cotenant  has  taken  more 
than  his  share  of  the  profits.  That  statute  has  been  re-enacted  in  effect 
in  this  country. 

8  See  the  cases  cited  in  L.  C.  Torts,  pp.  358-360. 


Chap.  X.  §2.]  TRESPASSES  UPCN  PROPERTY.  233 

in  this  country  have  denied  the  remedy  even  when  resorted  to 
in  cases  of  real  proj^erty.^ 

468.  In  respect  of  personal  property  however  it  will  be  seen 
in  the  next  chapter  that  an  action  for  the  conversion  of  the 
common   chattel   can   be    maintained   in   certain 

cases.  The  difficulty  thus  relates  more  to  the 
form  of  action  than  to  the  substance  of  things.  It  may 
therefore  be  laid  down,  that  for  one  tenant  in  common  of 
personal  property  to  withhold  possession  of  the  chattel  from 
his  associate,  or  to  expel  him  from  participation  in  the  pos- 
session, or  to  appropriate  to  himself  more  than  his  share  of 
the  profits  ai'ising  from  the  property,  is  a  breach  of  legal  duty 
to  the  latter,  for  which  the  law  gives  redress. ^ 

469.  It  has  been  observed   that,   in  order  to  maintain  an 
action  at  common  law  for  trespass  to  land,  possession  of  the 
land  at  the  time  of  the  wrongful  entry  is  neces-  j.  .         , 
sary.     But  the  common  law  does  not  allow  a  per-  possession  by 
son  who  has  wrongfully  entered,  to  take  and  enjoy 

the  profits  of  the  land,  or  to  commit  depredations  upon  the 
premises  during  his  occupancy,  without  a  reckoning.  If 
the  owner  or  person  entitled  to  the  possession  subsequently 
obtain  possession  of  the  land,  the  law  treats  him,  by  the 
fiction  of  relation,  as  having  been  in  possession  during 
all  the  time  that  has  elapsed  since  he  was  ejected  from  the 
premises.^ 

470.  The  consequence  is,  that  upon  his  re-entry  he  becomes 
entitled  to  sue  for  the  damage  which  he  has  sustained  at  the 
hands  of   the  party  who  has  usurped  the   possession.     The 

1  Wait  V.  Richardson,  33  Vt.  100.  See  also  Bennet  v.  Bullock,  35 
Penn.  St.  364,  367. 

2  The  difficulty  in  the  way  of  an  action  for  trespass  is  that  the  defend- 
ant, tenant  in  common,  hiid  a  v\<j;\it  of  possession,  and  that  is  incon- 
sistent with  that  action.  But  in  an  action  for  the  conversion  of  a  chattel, 
it  matters  not  that  the  defendant  had  a  right  of  possession.  The  gist  of 
such  an  action  is  not  (as  it  is  in  trespass)  the  wrongful  taking  possession, 
but  the  conversion  of  the  plaintiff's  right. 

^  Here  is  a  case  of  true  constructive  possession  in  realty.  See  ante, 
p.  226,  note. 


234  LAW   OF   TORTS.  [Part  IL 

remedy  thus  allowed  is  called  an  action  for  mesne  profits; 
that  is,  for  the  value  of  the  premises  during  the  period  in 
which  the  plaintiff  has  been  kept  out  of  possession  by  the 
defendant.  The  plaintiff  is  also  entitled  to  recover  for  all 
wrono'ful  entries  upon  and  damages  done  to  his  property  in 
the  mean  time.^  For  example:  The  defendant  enters  upon 
premises  of  the  plaintiff,  of  which  the  plaintiff  has  been  dis- 
seised, and  removes  buildings  therefrom.  The  plaintiff  sub- 
sequently re-enters,  and  then  brings  suit  for  damages  done  to 
his  property.     He  is,  entitled  to  recojer.^ 

471.  There  is  conflict  of  authority  in  regard  to  the  exist- 
ence in  the  disseisee  of  a  right  of  action  for  mesne  profits 
Descent  or  against  one  who,  before  the  plaintiff's  entry,  had 
purchase:  succeeded  the  disseisor  by  descent  or  purchase; 
biifty^fw^  ^^'  that  is,  in  the  language  of  tlie  law,  against  a 
mesne  profits,  stranger.  On  the  one  hand,  it  is  said  that  to 
take  a  supposed  title  from  another  cannot  be  a  trespass,  and 
therefore  mesne  profits  arising  during  the  latter's  occupation 
cannot  be  recovered  of  him.^  On  the  other  hand,  the  appar- 
ent injustice  of  this  doctrine  towards  the  owner  has  been 
urged,   and  the  contrary  conclusion  reached.* 

472.  Between  the  extremes  of  these  rulings  however  there 
is  an  important  class  of  cases  in  this  country,  in  regard  to 
Entry  under  whicli  there  is  little  conflict.  These  are  cases  in 
legal  process,    ^hich  the  defendant  claims  under  one  who  has 

1  Liford's  Case,  11  Coke,  46,  51.  As  to  cases  between  landlord  and 
tenant  see  (under  statute)  Smith  v.  Tett,  9  Ex.  307 ;  Doe  v.  Harlow,  12 
Ad.  &  E.  40;  Doe  v.  Challis,  17  Q.  B.  106  ;  Pearse  v.  Coker,  L.  R.  4  Ex. 
92.  Mesne  profits  may  now  be  had  in  a  suit  to  recover  the  land.  See 
ante,  p.  224. 

'■^  Dewey  v.  Osborn,  4  Cowen,  329.  This  case  shows  also  that  the 
party  on  re-entry  is  in  a  position  to  sue  for  every  entry  upon  his  lands 
made  without  authority. 

8  Liford's  Case,  11  Coke,  46,  51  ;  Barnett  v.  Guildford,  11  Ex.  19,  30; 
Case  V.  De  Goes,  3  Caines,  261,  263;  Van  Brunt  v.  Schenck,  10  Johns. 
377,  385 ;  Dewey  v.  Osborn,  4  Cowen,  329,  338. 

*  Holcomb  V.  Rawlyns,  2  Cro.  Eliz.  540 '  (decided  before  Liford's 
Case)  ;  s.  c.  L.  C.  Torts,  303;  Morgan  v.  Varick,  8  Wend.  587. 


Chap.  X.  §  2]  TRESPASSES   UPON   PROPERTY,  235 

been  let  into  possession  under  legal  process.  In  cases  of 
this  kind  it  has  been  held  that  the  defendant  is  not  liable  for 
mesne  profits;  and  it  seems  just,  as  well  as  conformable  to 
the  doctrine  of  trespass  upon  lands,  that  one  who  has  obtained 
possession  under  the  disseisor  by  process  of  law  should  be 
l^resumed  to  be  rightfully  possessed  while  the  process  (and 
the  possession  by  virtue  of  it)  continues  in  force.  For  exam- 
ple: The  defendant  enters  and  occupies  land  of  the  plaintiff 
under  a  writ  of  possession,  executed  against  one  who  had 
wrongfully  disseised  the  plaintiff.  The  writ  is  afterwards  set 
aside,  and  the  plaintiff  resumes  possession.  The  defendant 
is  not  liable  for  the  profits  consumed  during  his  occupancy.^ 
Again:  The  defendant  enters  and  takes  possession  of  the 
plaintiff's  land  under  a  license  from  one  who  has  been  put 
into  possession  against  a  wrongdoer  under  a  writ  of  restitu- 
tion, which  writ  is  afterwards  quashed.  The  defendant  is 
not  liable  for  the  mesne  profits.^ 

473.  It  would  seem  also  that  purchasers,  third  persons, 
under  judicial  sales,  should  stand  in  a  like  situation;  for, 
though  they  do  not  acquire  title  from  parties  let  Entry  under 
into  possession  under  legal  process,  they  take  Ji^diciai  sale, 
through  the  sheriff,  who  may  reasonabl}-  be  presumed  to  have 
authority  to  sell.  And  there  is  judicial  authority  for  this 
view.'^  It  would  (probal)ly)  be  otherwise  if  the  purchaser 
should  be  the  person  who  had  instituted  the  invalid  proceed- 
ings under  which  he  was  let  into  possession.* 

474.  The  non-liability  of  the  purchaser  or  heir  extends 
however  only  to  profits  consumed  by  him.  If  such  person 
sow  the  land,  or  cut  down  trees,  or  grass,  or  Extent  of 
crops,  and  sever  and  carry  them  away,  or  sell  them  liability, 
to  another,  the  disseisee,  after  regress,  may  take  the  things 
severed  wlierever  he  can  find  them,  or,  if  he  cannot  find  them, 
recover  their  value  of  the  person  lately  in  possession.     The 

^  Bacon  v.  Sheppard,  6  Halst.  197,  following  Menvil's  Case,  13  Coke, 
19,21. 

2  Case  V.  De  Goes,  3  Caines,  361,  following  Menvil's  Case,  supra. 
*  Dabney  ?'.  Manning,  8  Ohio,  -'lil. 
4  See  further  L.  C.  Torts,  362-306. 


236  LAW  OF  TORTS.  [Part  II. 

regress  of  the  disseisee  has  relation  to  the  beginning  of  the 
last  occupation,  and  the  title  to  the  things  severed  is  there- 
fore in  him,  which  title  the  carrying  away  and  disposing  of 
cannot  divest.^ 

§  3.    Of  what  constitutes  a  Trespass  to  Property. 

475.  The  gist  of  an  action  for  trespass  to  land  consists  in 
the  wrongful  entry  upon  it,  and  so  in  interfering  with  the 
Damage  not  Owner's  (or  tenant's)  right  of  entire  possession, 
necessary.  ^j-^y  entry  upon  land  in  the  rightful  possession  of 
another,  without  license  or  permission,  is  a  breach  of  duty  to 
the  possessor;  and  this  too  though  the  land  be  unenclosed. 
It  follows  that  an  action  is  maintainable  for  such  an  entr}-, 
though  it  be  attended  with  no  damage  to  the  possessor.  For 
example  :  The  defendant  without  permission  enters  upon  un- 
enclosed land  in  the  lawful  possession  of  the  plaintiff,  with  a 
surveyor  and  chain-carriers,  and  actually  surveys  part  of  it, 
but  without  doing  any  damage.  The  act  is  a  breach  of  duty 
to  the  plaintiff,  and  the  defendant  is  liable  at  least  to  nominal 
damages.  2 

476.  The  act  is  a  breach  of  duty  (though  not  in  strict  tech- 
nical sense  a  trespass)  even  if  the  close  entered  be  a  private 
Easement  way,  if  only  the  plaintiff  has  a  right  of  passage 
interrupted,  along  or  across  it;  it  matters  not  that  the  plaintiff 
has  no  right  to  the  soil.^  For  example:  The  defendant 
deposits  articles  at  various  times  in  a  passageway  to  the 
use  of  which  he  has  no  right,  and  the  plaintiff'  has  a  right, 
though  the  ownership  of  the  soil  is  in  another.  The  de- 
fendant is  liable;  though  he  removes  the  articles  in  every 

^  See  Liford's  Case,  supra.  But  of  course  if  the  owner  take  away  the 
things  severed,  the  defendant  can  recoup  their  value  in  trespass  for  the 
mesne  profits.     Id. 

2  Dougherty  v.  Stepp,  1  Dev.  &  R.  371  ;  Hobson  v.  Todd.  4  T.  R.  71, 
74.  Buller,  J.:  'The  right  has  been  injured.'  Should  the  defendant 
repeat  the  offence,  he  may  be  made  to  smart  for  it  in  damages.  Williams 
V.  Esling,  4  Barr,  486. 

^  The  action  under  the  old  system  was  'case,'  not  trespass.  See 
p.  244  (3). 


Chap.  X.  §  3.]  TRESPASSES   UPON  PROPERTY.  237 

instance  before  the  plaintiff  desires  to  pass  out,  and  never  in 
fact  hinders  the  plaintiff  in  entering  or  in  going  out  of  t]ie 
passage.^ 

477.  A  close  is  deemed  to  have  been  broken  and  entered 

even  though  the  act  was  not  in  fact   committed  within  it, 

but  only  against  its  bounds.     To  bring:  anything'    _, 

•^      °  .  ...  Trespass  to 

against  such  bounds  without  permission  is  a  tres-  bounds  of  a 
pass.  For  example :  The  defendant,  without  per-  ^  °^^' 
mission,  drives  nails  into  the  outer  wall  of  the  plaintiff's 
building,  which  stands  upon  the  line  of  the  plaintiff's  prem- 
ises. This  is  a  breach  of  duty,  for  which  the  defendant  is 
liable  in  damages. ^  Again:  The  defendant  heaps  up  dirt 
close  to  the  plaintiff's  boundary  wall,  and  the  dirt,  of  itself, 
falls  against  the  wall.     This  is  a  trespass. ^ 

478.  An  entry  upon  land,  or  a  taking  of  goods,  is  justifi- 
able when  effected  either  (1)  by  license   or  consent  of   the 

party,  or  (2')  by  license  of  the  law ;  a  license  being 

^        -^  ^  ^  .     .        ^,         1x^1  •  111       Justification 

a  mere  permission  to  do  what  otherwise  would  be  of  entry  or 

unlawful,  and  not  a  property  right.  The  term  takmg  goods: 
'  license  or  consent  of  the  party, '  as  here  used,  has 
reference  to  cases  in  which  there  is  nothing  beyond  an  actual 
consent,  either  in  answer  to  a  request  for  permission,  or  by 
specific  or  general  invitation  by  the  possessor;  as  e.  g.  in  the 
case  of  a  shopkeeper.  Cases  of  this  kind  sufficiently  explain 
themselves,  and  need  not  be  dwelt  upon.  The  term  '  license 
of  the  law '  has  reference  to  cases  in  which  a  permission  is 
given  regardless  of  the  will  of  the  owner  or  occupant,  in- 
cluding cases  in  which,  in  point  of  fact,  there  may  at  the 
same  time  be  a  license  of  the  party,  as  for  instance  the  case 
of  an  innkeeper  who  both  invites  and,  generally  speaking, 
must  receive  guests;  enough  that  the  license  is  paramount  to 
the  will  of  such  person. 

479.  In  cases  of  the  first  kind  the  license  is  revocable  in 

1  Williams  v.  Esling,  4  Barr,  486  ;  Cases,  277. 
'  Lawrence  v.  Obee,  1  Stark.  22. 
'  Gregory  v.  Piper,  9  B.  &  C.  591. 


238  LAW  OF  TORTS.  [Pakt  II 

respect  of  future  acts,  though  it  be  made  by  contract,  unless 
License  ^^  ^^  '  coupled  with  an  interest; '  the  licensor  may 

coupled  with  be  liable  for  breach  of  contract,  and  yet  revoke 
amn  eres  .  ^^^  license,  SO  as  to  take  away  the  licensee's  per- 
mission.^ A  license  is  'coupled  with  an  interest'  when  it 
comprises  or  is  connected  with  a  grant.  ^ 

480.  The  second  kind  needs  some  special  explanation. 
The  law  licenses  an  entry  upon  the  land  of  another,  or  the 
License  by  taking  possession  of  another's  goods,  in  many 
law:  condi-  cases ;  and  in  these  the  license  cannot  be  revoked 
ion  imp  le  .  ^^  ^-^^  party  affected.  The  first  in  importance  of 
such  cases  is  where  the  law  has  commanded  the  entry  or  the 
taking  possession;  the  entry  and  levy  of  a  sheriff  by  virtue 
of  a  valid  precept  being  the  chief  example.  In  such  cases 
reasonable  force  may  be  used  to  effect  an  entrance ;  though 
an  entrance  to  an  occupied  dwelling-house  cannot  be  forced, 
except  for  the  purpose  of  serving  criminal  process. ^  In  cases 
in  which  the  license  of  the  law  is  only  implied,  forcible  entry 
can  seldom  be  made,  except  in  the  case  of  an  owner  of  land 
entitled  to  take  actual  possession.*  That  is  to  say,  apart 
from  the  exceptional  cases,  the  license  appears  to  be  condi- 
tional ;  the  entry  may  be  made,  provided  that  it  can  be  made 
without  breach  of  the  peace. ^  The  following  are  cases  of  the 
kind :  — 

1  Wood  V.  Leadbitter,  1.3  M.  &  W.  838;  Hyde  v.  Graham,  1  H.  &  C. 
593.  But  the  licensee  may  sometimes  be  entitled  to  an  injunction 
against  the  revocation.     Frogley  v.  Lovelace,  Johns.  333. 

^  Wood  V.  Leadbitter,  supra,  at  p.  Sil. 

8  Swain  w,  Mizner,  8  Gray,  182  ;  Ilsley  v.  Nichols,  12  Pick.  270 ;  Bailey 
V.  Wright,  39  Mich.  96;  People  v.  Hubbard,  2i  Wend.  369.  Great  exi- 
gency affecting  the  public,  such  as  an  extensive  conflagration,  would 
probably  make  another  exception. 

*  Sampson  v.  Henry,  19  Pick.  36  ;  Churchill  v.  Hulbert,  110  Mass.  42. 

6  Churchill  v.  Hulbert,  supra.  See  Scribner  v.  Beach,  4  Denio,  448, 
451.  There  are  statutes  everywhere  imposing  penalties  for  forcible 
entry  upon  premises.  But  the  question  is,  whetlier  a  person,  having  a 
license  to  enter,  is  liable  not  only  for  the  penalties  but  also  as  a  tres- 
passer. It  appears  to  be  clear  that  if  the  person  entering  is  owner  of  the 
land,  and  entitled  to  take  possession,  he  is  liable  only  to  the  penalties  of 
the  statute.     Sampson  v.  Henry,  supra;  Biddall  v.  Maitland,  17  Ch.  D. 


Chap.  X.  §  3]  TRESPASSES  UPON  PROPERTY.  239 

481.  One  case  is  where  an  entry  is  made  into  an  inn,^  or 

perhaps  into  the  coach  of  a  common  carrier  of  passengers. 

Such  an  entry  is  lawful  if  the  party  is  in  a  fit 

condition  to  be  received,  paying  in  advance,  and  coaches  of 

in   the   case  of   a   passenger,  showing  a  ticket,  ^  common  car- 

i  o     '  o  '     ners. 

when  required. 

482.  A  second  case  is  wliere  the  party  in  possession  of  land 
has  bound  himself  by  debt  to  another,  without  an}'  stipulation 
in  regard  to  the  place  of   payment.     In  such  a      Entry  by 
case,  the  creditor  is  allowed  by  law  to  enter  his      creditor, 
debtor's  premises  for  the  purpose  of  demanding  payment. ^ 

483.  A  third  of  these  cases  is  where  the  party  in  230Ssession 
holds,  as  tenant,  a  piece  of  real  property  of  another.  In 
such  a  case,  the  law  allows  the  latter  to  make  Entry  by 
an  entry  upon  the  land  for  the  purpose  of  ascer-  landlord, 
taining  whether  his  interests  are  properly  regarded  by  the 
possessor.  For  example:  The  defendant  leases  land  to  the 
plaintiff,  and  subsequently  enters  to  see  if  the  latter  has 
committed  waste.     This  is  no  breach  of  duty  to  the  plaintiff.^ 

484.  A  fourth  case  is  where  goods  have  been  placed  upon 
a  man's  land  under  a  tenancy  at  will,  or  where  goods  have 
been   sold   which   lie    upon   the  premises  of  the      j;^tj.y  ^y 
vendor.     In  the  absence  of  any  special  agreement      iJuyer  of 
or  general  custom  concerning  the  delivery  of  the 

goods,  the  owner  may  go  upon  the  premises  and  take  them.^ 
For  example :  The  plaintiff  lets  premises  to  the  defendant  at 

174;  Edwick  v.  Hawkes,  18  Ch.  D.  199.  If  however  he  should  commit  an 
assault  upon  the  occupant,  that,  not  being  necessary  to  his  entry,  would 
make  him  liable  for  that  act.  Sampson  v.  Henry,  supra.  To  enter  forci- 
bly in  most  other  cases  would  be  a  trespass,  because  it  would  be  in  viola- 
tion of  the  condition  annexed  by  law  to  the  license.  See  Churchill  v. 
Hulbert,  supra;  Wheelden  v.  Lowell,  50  Maine,  499. 

i  Six  Carpenters'  Case,  8  Coke,  146. 

2  See  Butler  v.  :\Iaiichester  Ry.  Co.,  21  Q.  B.  Div.  207 ;  Shelton  v. 
Lake  Shore  Pvv.  Co.,  29  Ohio  St.  214. 

8  Black.  Com.  ill.  212. 

*  Id. 

6  Cornish  v.  Stnbbs,  L.  Pt.  5  C.  P.  334;  Mellor  v.  Watkins,  L.  R. 
9  Q.  B.  400  ;  McLeod  v.  Jones,  105  Mass.  403  (sale  of  goods  ou  vendor's 
land). 


240  LAW   OF  TORTS.  [Part  II. 

will,  on  the  terms  that  the  defendant  shall  have  reasonable 
time  to  remove  his  goods,  after  notice  to  quit.  The  defend- 
ant enters  accordingly  after  termination  of  the  lease,  to  get 
his  goods,  against  the  plaintiff's  refusal  to  allow  him.  This 
is  no  breach  of  duty.^ 

485.  A  fifth  case  is  where  the  owner  of  land  has  wrong- 
fully burdened  another  with  the  possession  of  his  (the  for- 
j.  t  u  mer's)  goods.  In  such  a  case,  the  goods  may  be 
owner  of  taken  and  put  upon  the  owner's  premises;  and 
goo  s  e  .  neither  the  taking  of  the  goods  nor  the  entry  upon 
the  owner's  premises  is  unlawful.  For  example:  The  de- 
fendant takes  an  iron  bar  and  sledge  belonging  to  the  plain- 
tiff, and  puts  them  upon  the  plaintiff's  land;  the  plaintiff 
having  first  brought  them  upon  the  defendant's  premises, 
and  then,  without  permission,  having  left  them  there.  The 
entry  is  lawful.^ 

486.  A  sixth  case  is  where  a  man's  goods,  without  his  act, 

have   got   upon   the  land  of  another.     In  such   a  case,  the 

„    ,  owner  of   the  ffoods    may  enter  and   take  them. 

Goods  on  an-  °  -^ 

other's  land  For  example:  The  defendant  enters  upon  the 
by  accident,  plaintiff's  land  to  get  apples,  which,  by  the  action 
of  the  wind,  have  been  blown  over  the  line,  from  the  defend- 
ant's trees  into  the  plaintiff's  close.  The  defendant  is  not 
liable.^  Again:  The  defendant  enters  upon  the  plaintiff's 
land  to  get  his  own  goods  which  the  plaintiff  has  wrongfully 
taken  and  put  there.  This  is  lawful;*  though  it  would  have 
been  otherwise  had  the  plaintiff  come  properly  into  posses- 
sion of  the  goods. ^ 

1  Cornish  v.  Stubbs,  supra. 

2  Cole  I'.  Maundy,  Viner's  Abr.  Trespass,  516.  See  other  cases  there 
referred  to. 

3  jMillen  v.  Fawdry,  Latch,  119,  120.  It  would  be  otherwise  if  the 
defendant  should  shake  the  trees.  Bacon's  Abr.  Trespass,  F.  The  ac- 
tion of  the  wind  would,  it  seems,  be  immaterial,  if  the  branches  overhung 
the  plaintiff's  land  ;  for  that  would  itself  be  a  nuisance.  Comp.  Penrud- 
dock's  Case,  5  Coke,  100  b.  The  defendant  should  be  allowed  to  enter 
only  when  he  is  entirely  in  the  right,  as  where  the  apples  are  blown  over 
the  fence  into  the  plaintiff's  grounds. 

*  Viner's  Abr.  Trespass,  1  (A) ;  L.  C.  Torts,  382. 
«  L.  C.  Torts,  381. 


Chap.  X.  §3.]     TRESPASSES  UPON  PROPERTY.  241 

487.  A  seventh  case  is  where  a  person  enters  the  premises  of 
another  to  save  hfe  or  to  succor  a  beast  in  danger.  Such  an 
act  is  not  a  trespass ;  hut  it  is  said  that  the  case  Entry  to  save 
wouki  be  different  if  the  entry  was  made  to  prevent  ^^^®- 

a  person  from  stealing  the  owner's  beast,  or  to  prevent  cattle 
from  consuming  his  corn.^  The  distinction  made  between  the 
cases  is  that  in  the  former  case  the  loss  of  the  animal  would 
be  irremedialjle,  that  is,  that  particular  animal  (which  might 
be  very  valuable)  could  not  be  replaced ;  while  in  the  latter 
case,  the  animal  might  be  recovered  from  the  thief,  or  the  corn 
replaced  by  purchase  or  by  a  new  crop:  all  corn  being  sub- 
stantially alike.     The  distinction  however  sounds  medi<jeval. 

488.  An  eighth  case  is  where  a  man  creates,  or  after  notice 
continues,  a  nuisance  upon  his  premises,  to  the  peculiar  injury 
of  his  neighbor.  In  such  cases  the  latter  may  Entry  to  abate 
enter  and  abate  the  nuisance.  For  example :  The  *  nuisance, 
defendant  enters  upon  the  plaintiff's  premises,  and  removes 
the  eaves  of  a  shed,  which  overhang  the  defendant's  land  and 
in  rainy  weather  dri})  upon  his  premises.  This  is  no  breach 
of  duty  to  the  plaintiff'.'^ 

489.  A  ninth  case  is  where  an  entry  has  been  made  upon 
land  of  another  by  reason  of  necessity,  without  the  fault  of 
the  person  entering.  Such  an  entry  is  justifiable.  Entry  of 
For  example :  The  defendant  runs  into  the  plain-  necessity, 
fifths  premises  to  escape  a  savage  animal,  or  the  assault  of  a 
man  in  pursuit  of  him.  The  defendant  is  not  liable.^  Again : 
The  defendant  enters  upon  the  plaintiff's  premises  to  pass  by  a 
portion  of  the  highway  which  at  this  j^oint  is  wholly  flooded,  but 
without  the  act  of  the  defendant.     The  entry  is  justifiable.* 

490.  It  has  already  been  seen  that  a  trespass  to  property 
consists  in  an  unlawful  entry  of  land  or  taking  of  goods,Saiid 

1  Bacon,  ut  supra. 

2  Peiiruddock's  Case,  5  Coke,  100  b;  L.  C.  Torts,  383,  where  various 
distinctions  as  to  such  cases  are  mentioned. 

^  Year  Book,  37  Hen.  6,  p.  37,  pi.  26. 
*  Absor  V.  French,  2  Show.  28. 

6  Where  A's  goods  are  unlawfully  sold  and  delivered  by  B,  must  the 
former  make  demand  for  them  before  he  can  sue  for  the  trespass  ?     The 

16 


242  LAW  OF  TORTS.  [Part  II. 

a  trespass  by  imprisonment  in  an  unlawful  arrest.  There  is 
Trespass  ab  oue  case  however  in  which,  by  reason  of  subsequent 
initio.  acts,  a  person  may  be  treated  as  a  trespasser  not- 

withstanding the  lawfulness  of  the  entry  or  taking  possession, 
or  of  the  arrest ;  the  result  thus  being  to  deprive  the  party  of 
the  justification  of  the  lawfulness  of  the  original  act,  and,  by 
a  fiction  of  law,  to  make  him  a  trespasser  ab  initio.  Accord- 
ing to  this  fiction,  one  who  has  taken  possession  of  goods,  or 
entered  upon  land,  by  virtue  of  a  license  of  the  law,  becomes 
a  trespasser  ab  initio  (notwithstanding  the  lawfulness  of  the 
levy  or  entry),  where  afterwards,  while  acting  under  the 
license,  he  commits  an  act  which  in  itself  amounts  to  a  tres- 
pass.^ For  example:  The  defendant,  a  sheriff,  remains  an 
unreasonable  length  of  time  in  the  plaintiff's  house  in  posses- 
sion of  goods  taken  by  him  in  execution.  He  is  a  trespasser 
ab  initio.^ 

491.  But,  in  order  to  become  a  trespasser  ab  initio,  the 
subsequent  act  must,  it  has  been  held,  be  a  technical  trespass, 
or  at  least  show  a  purpose  to  make  use  of  the  license  as  a 
mere  cover  for  a  wrongful  act.  If  this  is  not  the  case,  —  if 
the  entry  was  in  good  faith,  and  the  subsequent  act  was  not  a 
trespass,  —  the  party  is  not  to  be  treated  as  a  trespasser  from 
the  beginning,  though  the  act  committed  be  wrongful  and 
subject  him  to  liability.  For  example:  The  defendant,  an 
officer,  enters  upon  the  plaintiff's  premises  by  virtue  of  a 
lawful  writ,  to  make  a  levy  for  debt.  While  there,  in  the 
course  of  his  business  as  an  officer,  he  wrongfully  extorts 
money  from  the  j)laintiff.  He  is  not  a  tresj)asser  from  the 
beginning  of  his  entry,  though  the  extortion  was  a  breach 
of  duty  for  which  he  would  be  liable  in  damages ;  extor- 
tion not  being  a  trespass.^     Again:    The  defendant  refuses 

question  is  not  so  important  now  as  formerly,  for  suit  is  more  generally 
brought  in  such  cases  for  conversion.     See  post,  p.  263. 

1  Six  Carpenters'  Case,  S  Coke,  146 ;  L.  C.  Torts,  386. 

2  Ash  V.  Dawnay,  8  Ex.  237 ;  Rowley  v.  Rice,  11  Met.  337. 

8  Shorland  v.  Govett,  5  B.  &  C.  485.  See  Six  Carpenters'  Case,  supra. 
But  compare  IloUey  v.  Mix,  3  AVend.  350.  If  the  entry  under  the  writ 
was  merely  to  cover  the  purpose  to  extort,  there  would  probably  be  a 


Oeap.  X.  §  3.]  TRESPASSES   UPON   PROPEETY.  243 

to  drop  a  distress  on  the  plaintiff's  goods,  upon  due  tender 
by  the  plaintiff  of  the  rent  due.  The  defendant  is  not  a 
trespasser.^ 

492.  These    examples,    on   consideration,    will    show    the 

importance    of   the   doctrine   of   trespass    ab  initio.      If   the 

person's  conduct  make  him  obnoxious  to  this  doc-  „.     .^ 
.         .  Sig'nincauce 

trine,  it  follows  (probably)  that  all  acts  done,  such  of  trespass  ab 
as,  in  the  case  of  an  officer,  levies  made,  interme-  ^^*^°' 
diate  the  entry  and  the  trespass,  are  void;  since,  his  entry 
being  a  trespass,  he  could  not,  according  to  general  principles 
of  law,  thereafter  do  an  act  against  the  will  of  the  occupant 
which  would  be  legal. ^  Besides,  he  would  be  liable  for  the 
entry  as  well  as  the  after  acts.  The  doctrine  does  not  there- 
fore concern  the  form  of  remedy  alone. 

493.  This  doctrine  of  trespass  ab  initio  applies  how^ever 
only  against  persons  who  have  entered  or  taken  goods  l)y 
license  of  law.  A  person  cannot  treat  as  a  tres-  limitation  of 
passer  from  the  beginning  one  to  whom  he  has  ^^®  doctrine, 
himself  given  permission  to  enter  or  take  his  goods,  wdiatever 
be  the  nature  of  his  subsecjuent  acts.^  For  example:  The 
defendant,  by  permission  of  the  plaintiff's  wife,  enters  the 
plaintift''s  house  in  his  absence,  and  while  there  wrongfully 

trespass  ab  initio.  Compare  Grainger  v.  Hill,  4  Bing.  N.  C.  212,  ante,  pp. 
118,  200.  That,  it  seems,  suggests  the  true  distinction.  Six  Carpen- 
ters' Case,  supra.  See  also  Commonwealth  v.  Rubin,  16-3  Mass.  453, 
Holmes,  J.  The  doctrine  is  applicable  only  to  cases  in  which  there  has 
been  an  '  abuse  of  some  special  and  particular  authority  given  by  law, 
as  in  the  case  of  process.  Esty  ik  Wilmot,  15  Gray,  168.  The  exercise 
of  the  power  given  is  conditional  upon  keeping  wholly  within  legal  limits. 
Id.,  Hoar,  J. 

1  West  V.  Nibbs,  4  C.  B.  172. 

2  Compare  Ilsley  v.  Nichols,  12  Pick.  270,  denying  certain  dicta  of  the 
books.  Ilsley  v.  Nichols  decides  that  a  levy  made  by  breaking  open  the 
outer  door  of  an  occupied  dwelling-house  (a  house  is  a  man's  castle)  is 
invalid,  and  the  officer  is  liable  for  the  value  of  the  goods  taken  as  well 
as  for  the  unlawful  entry.  The  same  result  should  in  principle  follow  if, 
by  an  act  subsequent  to  the  entry,  he  become  a  trespasser  from  the 
beginning. 

8  Six  Carpenters'  Case,  supra;  Esty  v.  Wilmot,  15  Gray,  168;  Allen  v. 
Crofootj  5  Wend.  506. 


244  I^W   OF  TORTS.  [Part  II 

gets  possession  of  papers,  and  carries  them  away.     This  does 
not  make  him  a  trespasser  ab  initio.^ 

494.  As  where  the  entry  was  made  in  good  faith  the  subse- 
quent act  must  amount  to  a  trespass,  it  becomes  necessary 
Meaning  of  to  ascertain  somewhat  precisely  the  technical  sig- 
trespass.  nification  of  that  term.  It  is  difficult  to  define  a 
trespass,  but  the  following  will  serve  to  indicate  the  proper 
meaning  of  the  term:  (1)  Any  wrongful  intended  contact 
with  the  person  is  a  trespass.  (2)  Any  wrongful  entry  upon 
the  plaintiff's  land  or  interference  with  the  plaintiff"'s  posses- 
sion of  personalty  is  a  trespass.  (3)  Any  wrongful  act  com- 
mitted directly  with  force  is  a  trespass,  though  no  physical 
contact  with  the  person  of  the  plaintiff  or  with  his  property 
be  produced;  as  in  the  case  of  an  imprisonment  without 
contact,  or  the  firing  a  gun  under  the  plaintiff's  window,  to 
alarm  the  inmates  of  his  house.  In  cases  like  these,  force  is 
said  to  be  implied.  Upon  the  same  ground,  the  seduction  of 
the  plaintiff's  wife,  daughter,  or  servant  might  perhaps  be 
considered  as  a  trespass,  and  the  act  was  formerly  so  treated 
by  the  courts ;  ^  the  consent  given  was  not  the  plaintiff's  con- 
sent.    But  the  present  view  is  different.^ 

495.  On  the  other  hand,  (1)  a  mere  non-feasance  (that  is, 
a  pure  omission)  cannot  be  a  trespass;*  (2)  nor  can  there  be 
a  trespass  where  the  matter  affected  was  not  tangible,  and 
hence  could  not  be  immediately  injured  by  force,  as  in  the 
case  of  an  injury  to  reputation  or  health ;  (3)  nor  can  there 
be  a  proper  trespass  where  the  right  affected  is  incorporeal, 
as  a  right  of  common  or  way ;  (4)  nor  where  the  interest  in- 
jured exists  in  reversion  or  remainder;  (5)  nor  where  there 
is  no  right  of  action  immediate  upon  the  act  in  question.  ^ 

1  Allen  V.  Crofoot,  5  AVend.  506. 

2  Tullidge  V.  Wade,  3  Wils.  18  ;    Chitty,  Pleading,  i.  126,  133. 

*  Macfadzen  o.  Olivant,  6  East,  387.  Chitty  prefers  the  old  doctrine. 
Pleading,  i.  133. 

*  Six  Carpenters'  Case,  8  Coke,  146. 

5  See  Chitty,  Pleading,  i.  166.  Bnt  quaere  whether  the  effect  of  the 
rule  of  trespass  ab  initio  might  not  be  had  in  some  of  these  cases,  as  in 
the  third  and  fourth  ? 


Chap.  X.  §  3.]  TRESPASSES   UPON  PROPERTY.  245 

496.  Lastly,  to  constitute  a  trespass  to  property,  the  thing 
affected  must  be  capable  of  ownership  as  proj^erty;   and  in 
some  cases  it  must  have  been  in  the  plaintiff's  pos-  _,. . 
session  at  the  time.     Wild  animals,  untamed,  are  are  not  prop- 
deemed  property  only  while   in   one's   actual  or  ^^*^' 
constructive  possession;  upon  effectual  and  final  escape,  they 
cease  to  be  property  so  long  as  they  are  free.     Any  one  may 
now  kill  or  take   them.     Indeed  a  savage  domestic  animal 
straying  at  large,  and  dangerous,  may  be  killed,  though  the 
owner  be  known  to  be  in  pursuit.^ 

497.  A  man  may  have  property  in  a  dog  even  though  the 
animal  may  not  have  any  certain  pecuniary  value. ^  The 
same  is  probably  true  of  rare  animals  kept  for  study,  for 
exhibition,  for  breeding,  or  even  as  pets.^  No  one  therefore 
has  a  right  to  take  these  from  the  owner,  or  to  keep  them  from 
him  when  taken  up  as  strays,*  or  needlessly  to  kill  them.^ 
But  there  are  circumstances  when  the  law  justifies  the  kill- 
ing of  another's  animals;  a  man  may  not  only  protect  himself 
or  another  from  the  attack  of  a  beast,  he  may  kill  an  animal, 
in  some  cases,  which  is  doing  mischief,  as  a  dog  which  is 
biting  or  worrying  his  sheep  or  other  valuable  animals  or 
fowls. ^  Indeed,  a  savage  dog,  suffered  to  run  at  large 
without  a  muzzle,  and  disposed  to  attack  or  snap  at  people, 
may  be  treated  as  a  nuisance  and  killed  by  any  one;  and 
that  too  whether  at  the  time  the  dog  was  doing  harm  or 
not." 

498.  A  man  may  however  keep  a  ferocious  dog  as  a  Avatch 
over  his  premises,  if  properly  secured;  while  the  dog  is  in 
such  a  situation,  no  one  may  lawfully  kill  it,  unless  indeed 

1  Kent,  Com.  ii.  348,  349. 

2  Dodson  V.  Meek,  4  Dev.  &  B.  ]  iG ;  Wlieatly  v.  Hanis,  4  Sneed, 
468. 

3  See  Amory  v.  Flyn,  10  Johns.  102,  as  to  wild  animals  tamed. 
*  Id. 

^  Dodson  V.  Meek  and  Wheatly  v.  Harris,  supra. 

6  King  V.  Kline,  6  Barr,  318;  Woolf  w.  Chalker,  31  Conn.  121;  Brown 
V.  Hoburger,  52  Parb.  15. 

'  Putnam  v.  Payne,  13  Johns.  312 ;  Maxwell  v.  Palmerston,  21  Wend 
407 ;  Brown  v.  Carpenter,  26  Vt.  638. 


246  LAW   OF  TORTS.  [Part  II. 

it  is  then  making  an  attack  upon  man  or  beast. ^  It  would 
doubtless  be  lawful  to  kill  the  dog  to  save  the  life  even  of  a 
burglar. 

499.  A  word  may  be  added  in  regard  to  trespassing  ani- 
mals. The  law  is  very  plain  and  natural ;  trespassing  will 
Trespassing  Seldom  justify  killing  or  maiming,^  or  even  de- 
animals,  taining  upon  a  claim  for  anything  more  than  re- 
imbursement of  necessary  expenses  and  payment  of  damage 
done.  And  if  detained,  the  animals  must  be  taken  care  of 
and  properly  treated.^  On  the  other  hand,  if  driven  away, 
that  must  be  done  without  unnecessary  violence;  such  vio- 
lence would  be  a  trespass.  For  example:  The  defendant, 
finding  the  plaintiff's  horse  straying  upon  his  premises,  sets 
a  savage  dog  upon  it,  and  the  horse  is  seriously  hurt.  The 
defendant  is  liable  in  damages.* 

1  See  Perry  v.  Phipps,  10  Ired.  259. 

2  See  Aldrich  v.  Wright,  53  N.  H.  398,  an  important  case,  in  -which 
a  killing  was  held  proper. 

8  Miirgoo  r.  Cogswell,  1  E.  D.  Smith,  359. 
*  Amick  u.  O'Hara,  6  Blackf.  258. 


CHAPTER   XI. 

CONVERSION. 

Statement  of  the  duty.  A  owes  to  B  the  duty  not  to  exer- 
cise dominion  (1)  over  B's  general  property  in  personal  chat- 
tels; (2)  over  B's  special  property  in  the  like  things. 

By  '  general  property '  is  commonl}^  meant  the  ownership 
of  property,  subject,  it  may  be,  to  a  special  property  for  a 
time  in  another. 

By  '  special  property  '  is  meant  a  right  of  possession  coupled 
with  possession;  the  right  being  general,  as  in  the  case  of  a 
lien  creditor,  or  limited,  as  in  the  case  of  a  finder. 

By  '  bare  possession  '  merely  is  commonly  meant  a  mere 
custody  ('  detention  ')  or  a  possession  unlawfully  obtained. 

The  action  for  converting  goods  to  one's  own  use  has 
ahv^ays  been  called  '  trover, '  a  term  meaning  '  to  find, '  which 
was  used  in  the  old  precedents  of  declaration;  the  plaintiff, 
by  a  fiction,  alleging  that  he  had  lost  and  the  defendant  had 
found  and  converted  to  his  own  use  the  chattel  in  question. 
This  fiction  was  resorted  to  in  cases  of  bailment  or  the  like, 
to  avoid  the  objection  that  the  defendant  had  received  the 
goods  from  the  hand  of  the  plaintiff.^  The  judges  received 
the  allegation  accordingly,  and  did  not  require  proof  of  it; 
proof  of  the  conversion  therefore  was  enough. 

The  action  of  '  trover '  is  an  action  to  recover  (not  specific 

1  According  to  the  old  theory  the  wrong  must  have  been  done  to  the 
plaintiff's  possession,  and  hence  it  was  fatal  to  any  action  of  the  kind  that 
the  plaintiff  had  delivered  possession  to  the  defendant.  If,  in  respect  of 
possession,  the  conversion  had  originally  been  deemed  enough,  there 
would  have  been  no  need  of  the  invention  of  the  fiction  of  loss  and 
finding. 

Such  common  cases  as  actions  for  the  taking  of  straying  cattle  may 
have  suggested  the  idea  of  the  fiction.     See  L.  C.  Torts,  422. 


248  LAW   OF  TORTS.    •  [Part  II. 

articles,  but)  damages  for  the  conversion  of  chattels  personal, 
to  the  value  of  the  interest  converted. 

By  an  '  act  of  dominion  '  is  meant  an  act  of,  or  tantamount 
to,  ownership. 

The  action  of  detinue  is  not  much  used  in  modern  times. 
Its  object  is  to  recover  chattels  in  specie,  or  damages  for  their 
non-return  if  they  cannot  be  had,  and  damages  for  the  wrong- 
ful detention.  It  has  been  superseded  largely  by  the  statu- 
tory action  of  replevin  and  by  trover.  The  principles  set 
forth  in  this  chapter  apply,  generally  speaking,  to  all  three  of 
these  actions. 

As  in  trespass,  so  in  trover,  detinue,  and  replevin,  the 
thing  alleged  to  have  been  converted  must  be  capable  of 
ownershi]3  as  property.^ 

§  1.    What  must  be  Proved. 

500.  The  plaintiff  is  entitled  to  recover  by  proving  that  the 
defendant  took  and  converted  to  his  own  use  goods  of  which 
the  plaintiff  was  in  possession  or  entitled  to  take  possession  at 
the  time  of  the  conversion  or  because  of  that  act. 

§  2.    Of  Possession. 

501.  The   possession  of  a  chattel   personal,  that   is,   of   a 
movable  article,  or  a  right  to  take  possession  thereof,  is  neces- 
sary to  support  an  action  for  conversion,  iust  as 

Possession  .  . 

necessary  to  it  is  to  support  an  action  for  trespass.  The  plain- 
action  for  con-  tiff  fails  in  trover  if  it  appear  that  he  has  never 

version 

acquired  a  right  of  possession,  or  if  he  has,  that 
he  has  parted  with  it,  and  has  not  before  suit  become  rein- 
vested with  the  same.  For  example:  The  plaintiff  is  the 
purchaser  of  goods,  which  however  remain  in  the  seller's  pos- 
session subject  to  a  lien  for  the  purchase  price.  The  defend- 
ant, without  authority,  removes  the  goods  from  the  seller's 
possession,  doing  no  permanent  injury  to  them.  This  is  no 
breach  of  duty  to  the  plaintiff.^  Again:  The  defendant,  a 
sheriff,  wrongfully  levies  upon  goods  of  the  plaintiff  in  the 

1  See  ante,  p.  2io.  ^  Lord  v.  Price,  L.  R.  9  Ex.  54. 


CiiAP.  XI.  §  2.]  .       CONVERSION.  249 

hands  of  a  lessee  of  the  property,  and  carries  the  goods  away. 
The  phiintiff  cannot  treat  the  act  as  a  conversion  (though  the 
tenant  could),  since  the  plaintiff  was  not  entitled  to  the  pos- 
session of  the  property.^ 

502.  On  the  other  hand,  the  right  to  the  possession  of  the 
chattels  is  sufficient  to  enable  the  general  owner  to  sue  for  a 
conversion  thereof,  though  he  may  not  have  the  actual  pos- 
session at  the  time  of  the  wrongful  act;  because,  as  was  stated 
in  the  preceding  chapter,  the  right  to  take  possession  of  goods 
draws  possession  in  law.  For  example:  The  defendant  buys 
and  takes  away  a  chattel  belonging  to  the  plaintiff  from  A, 
who  had  no  right  to  sell  it.  The  plaintiff,  being  the  owner, 
is  deemed  to  have  been  in  possession  of  the  chattel  at  the 
time  of  the  conversion  by  the  defendant.^ 

503.  A  person  having  '  special  property '    in  goods,   with 
general  right  of  possession,  can  maintain  an  action  for  con- 
version against  all  persons  ^vho  may  wrongfully  special  prop- 
exercise  dominion  over  them,  though  the  act  be  ^^^y- 

done  by  command  of  the  owner  of  the  goods.  For  example: 
The  defendant  takes  a  horse  out  of  the  possession  of  the 
plaintiff,  the  plaintiff  having  a  lien  upon  the  animal.  The 
defendant  acts  by  direction  of  the  owner,  but  without  other 
authority.     He  is  liable  for  conversion  of  the  horse. ^ 

504.  It  follows  that  a  person  having  a  special  property  in 
goods,  together  with  general  right  of  possession  of  them, 
may  maintain  an  action  against  the  owner  himself  for  any 
unpermitted  disturbance  or  refusal  of  his  possession;  since, 
if  the  owner  cannot  give  an  authority  to  another  to  take  the 
goods,  he  cannot  take  them  himself.  For  example:  The 
defendant,   owner  of  a  title-deed,   in  the    possession  of   the 

1  Gordon  v.  Harper,  7  T.  R.  9.  See  Farrant  v.  Thompson,  5  B.  & 
Aid.  8-26;  ante,  p.  230. 

2  Hyde  v.  Noble,  13  N.  H.  494;  Clark  v.  Rideout,  89  N.  H.  238; 
Carter  v.  Kingman,  103  Mass.  517. 

8  See  Outcalt  r.  Darling,  1  Dutch.  443.  The  form  of  action  in  this 
case  was  trespass,  but  it  might  as  well  have  been  trover.  The  injured 
party  could  sue  in  either  form  in  such  cases. 


250  I^AW   OF   TORTS.  [Part  U 

plaintiff  under  a  temporary  right  to  hold  it,  takes  it  by  per- 
mission of  the  plaintiff'  for  a  particular  purpose,  and  then, 
during  the  continuance  of  the  plaintiff's  right  to  hold  it,  re- 
fuses to  redeliver  it.  The  defendant  has  violated  his  duty  to 
the  plaintiff,  and  is  liable  for  conversion.^ 

505.  One  who  has  possession  of  chattels^  though  without 
a  right  to  hold  them  against  the  owner,  is  also  protected 
Possession  against  all  persons  having  neither  a  right  of  prop- 
without  right,  epty  nor  of  possession.  The  mere  fact  that  the 
possessor  of  goods  has  no  right  to  hold  them  against  persons 
having  a  general  or  higher  special  property  in  the  goods, 
gives  no  privilege  to  a  stranger  to  interfere  with  the  party's 
possession.  So  to  interfere  would  be  a  breach  of  duty  to  the 
possessor  which  would  render  the  person  interfering  liable  for 
the  value  of  the  goods.  For  example:  The  defendant,  a 
stranger,  refuses  to  return  to  the  plaintiff  a  jewel,  which  the 
latter  has  found  and  shown  to  the  defendant.  The  defend- 
ant's act  is  a  breach  of  duty  to  the  plaintiff,  and  he  is  liable 
for  the  value  of  the  jewel.  ^ 

506.  It  woidd  be  different  however  if  the  defendant  acted 

under  express  authority  of  the  owner,  or  of  one  entitled  to  the 

possession  of  the  property.  But  it  is  laid  down 
Jus  tertii.  L      i.        J 

that  the  defendant  could  not  set  up  the  rights  of 
a  third  person  (called  the  '  jus  tertii ')  without  authority  from 
the  latter.^  That  is,  the  defendant  can  deny  the  plaintiff's 
right  only  by  showing  a  better  right  in  himself.* 

507.  The  finding  of  a  chattel  does  not  however  in  all  cases 
give  a  right  to  hold  the  article  against  all  persons  having  no 

1  Roberts  v.  Wyatt,  2  Taunt.  268. 

2  Armory  v.  Delamirie,  1  Strange,  505  ;  Cases,  288. 

8  Rogers  i\  Arnold,  12  Wend.  30  (suit  to  recover  the  chattels  specifi- 
cally) ;  Jefferies  i'.  Great  Western  Ry.  Co.,  5  El.  &  B.  802 ;  Cheesman  v. 
Exall,  6  Ex.  341 ;  L.  C.  Torts,  426.  Does  this  mean  that  possession  in 
itself,  however  obtained,  will  be  protected,  —  that  it  cannot  be  shown  e.g. 
that  the  plaintiff  stole  the  property  ?     See  ante,  p.  227,  note. 

*  Hubbard  v.  Lyman,  8  Allen,  520  ;  Landon  v.  Emmons,  97  Mass.  37. 


Chap.  XI.  §  2.]  CONVEKSION.  251 

right  of  property  in  it;  though  the  finding  and  taking  pos- 
session were  not  unlawful  as  against  the  loser. 
The  chattel  may  be  found  upon  the  premises  of 
another,  in  such  a  situation  as  to  indicate  that  it  was  volun- 
tarily put  in  possession  of  the  owner  of  the  premises.  When 
this  is  the  case,  the  possession  of  the  article  is  deemed  to  he 
in  the  occupant  of  the  premises,  and  not  in  the  finder.  The 
former  can  therefore  mamtain  an  action  for  conversion  against 
the  latter,  should  he  refuse  to  surrender  to  him  the  chattel. 
For  example:  The  defendant,  a  barber,  receives  from  the 
plaintiff,  a  customer  in  his  shop,  a  pocket-book  containing 
money,  which  the  plaintiff  has  discovered  lying  upon  a  table 
in  the  defendant's  shop.  The  plaintiff,  in  handing  the  pocket- 
book  to  the  defendant,  tells  him  to  keep  it  until  he  can  dis- 
cover the  owner,  and  then  return  it  to  the  loser.  No  one 
having  called  for  the  article,  the  plaintiff  claims  it,  and  the 
defendant  refuses  to  give  it  to  him.  This  is  not  a  breach  of 
duty  to  the  plaintiff,  since  the  fact  that  the  pocket-book  was 
left  upon  the  defendant's  table  indicates  that  the  owner  put 
it  there  by  intention,  and  so  put  it  into  the  defendant's  keep- 
ing or  possession.^ 

508.  If  however  the  chattel  be  found  in  a  position  which 
indicates  that  it  could  not  have  been  purposely  put  there, 
but  must  have  been  unintentionally  parted  with,  and  so  truly 
lost  the  moment  it  escaped  the  owner,  it  does  not  fall  into 
the  keeping  or  possession  of  the  occupant  of  the  premises 
unless  he  (or  his  servant)  first  discover  it  there.  If  another 
first  find  it,  the  possession,  as  between  himself  and  the  occu- 
pant, is  in  him,  the  finder. ^  For  example:  The  defendant,  a 
shop-keeper,  receives  from  the  plaintiff  a  parcel,  containing 
bank-notes,  which  the  latter  has  picked  up  from  the  fioor  of 
the  defendant's  shop ;  the  plaintiff,  on  handing  the  parcel  to 
the  defendant,  telling  him  to  keep  the  same  till  the  owner 
claims  it.  The  defendant  advertises  the  parcel,  but  no  one 
claims  it,  and  three  years  having  elapsed,  the   plaintiff  re- 

1  McAvoy  V.  Medina,  11  Allen,  548. 

2  South  Staffordshire  Water  Co.  v.  Sharman,  1896,  2  Q.  B.  44 ;  Bridges 
V.  Hawkesworth,  21  L.  J.  Q.  B.  75. 


252  LAW   OF  TORTS.  [Part  H 

quests  the  defendant  to  return  to  him  the  bills,  at  the  same 
time  tendering  the  cost  of  advertising,  and  even  offering  an 
indemnity.  The  defendant  refuses.  This  is  a  breach  of  duty 
to  the  plaintiff,  and  the  defendant  is  liable  to  him  for  conver- 
sion of  the  parcel.^ 

509.  The  term  '  possession  '  has  the  same  meaning  here, 
and  indeed  everywhere  in  the  law  of   torts,  that   it  has  in 

cases  of  trespass.^     Thus,  a  servant  can,  it  seems, 

7oss6ssioii 

here  has  the     o^ily  hold;    the  possession  is  the  master's.     For 

same  meaning  example :  The  defendant  takes  goods  out  of  the 
as  in  trespass.   ,         t        p    i         ,    .      ...^  ,       .«p,       ,  .  , 

hands  of  the  plamtin,  a  sherin  s  deputy,  without 

authority.     The  act  is  deemed  not  a  breach  of  duty  to  the 

plaintiff,  since  he  is  but  a  servant,  and  so  holds  not  in  his 

own  right ;  ^  though  it  would  be  otherwise  in  regard  to  the 

sheriff. 

§  3.    Or  WHAT  CONSTITUTES  Con\t:ksion. 

510.  It  has  been  seen  that  conversion  consists  in  the  exer- 
cise of  an  act  of  dominion  over  the  movables  of  another;  that 
Usurpation  of  i^i  ^^  ^^  ^  usurpation  of  ownership.  It  mat- 
ownership,  ters  not  whether  this  was  done  with  or  without 
knowledge  of  the  true  state  of  the  title,  as  will  be  seen ;  every 
man  acts  at  his  peril  in  exercising  acts  of  dominion  over 
property.^  The  distinction  between  trespass  and  conversion 
consists  in  this,  that  trespass  is  an  unlawful  taking,  as  for 
the  mere  sake  of  removing  the  property,  while  conversion  is 
an  unlawful  taking  or  keeping  in  the  exercise,  legally  con- 
sidered, of  the  right  of  ownership.^ 

1  Bridges  v.  Hawkesworth,  supra. 

2  Ante,  p.  227.  The  meaning  there  ascribed  to  the  terra  is  intended 
to  be  of  the  widest  application,  where  the  possession  is  real. 

8  Hampton  v.  Brown,  13  Ired.  18;  ante,  p.  228. 

*  See  a  qualification  stated  in  Hollins  v.  Fowler,  L.  R.  7  H.  L.  757, 
768,  Lord  Blackburn,  in  regard  to  dealing  with  goods  at  the  request  of  a 
person  having  actual  custody  of  them,  in  the  bona  fide  belief  that  such 
person  is  owner,  or  has  the  owner's  authority. 

6  See  Bushel  v.  Miller,  1  Strange,  129  ;  Fouldes  v.  Willoughby,  8  M.  & 
W.  540,  551,  Rolfe,  B. 


Chap.  XI.  §3.]  CONVERSION.  253 

511.  Acts  of  dominion  appear  in  two  forms:  first,  where 
the  wrongdoer  appropriates  to  himself  the  goods  of  another; 
secondly,  where,  without  appropriating  them  to  himself,  lie 
deprives  the  owner,  or  person  having  the  superior  right,  of 
their  use,  by  an  act  of  ownership. 

512.  The  most  common  illustration  of  an  act  of  dominion 
in  the  first  form  is  the  case  of  a  sale  and  delivery  of  goods, 
made  without  authority  of  the  owner.  Every  g^j^  ^^^  ^g_ 
sale  without  restriction  by  a  person  having  no  livery  without 
right  to  sell  is  a  conversion,  if  followed  by  deliv-  ^^  °"  ^' 
ery,^  and  renders  the  vendor  liable  in  an  action  of  trover.^ 
For  example:  The  defendant,  an  officer,  levies  upon  goods 
as  the  property  of  a  third  pereon,  some  of  which  belong  to 
the  plaintiff,  takes  them  away,  after  being  informed  of  the 
plaintiff's  claim,  and  sells  the  whole.  This  is  a  conversion 
of  the  plaintiff's  goods;  though  it  would  have  been  other- 
wise had  the  goods  been  mixed  by  the  plaintiff  with  those 
of  the  third  person,^  and  a  separation  not  offered  by  the 
plaintiff.  4 

513.  The  same  consequence  follows  where,  having  author- 
ity to  make  a  sale,  the  party  selling  transgresses  his  right; 
since  to  do  so  is  to  assert  that  he  may  sell  according  to  his 
own  will,  and  that  is  to  exclude  the  rights  of  all  others.  For 
example:  the  defendant,  an  officer,  makes,  unnecessarily,  an 
excessive  levy  upon  the  plaintiff's  goods,  under  a  valid  writ, 
and  sells  them.  This  is  a  conversion,  since  it  is  done  in  dis- 
regard of  the  defendant's  authority,  and  accoiding  to  the 
party's  own  will.^ 

514.  This  principle  that  the  sale  of  property  with  delivery 
is  an  act  of  dominion  so  as  to  render  the  seller  liable  for  con- 

1  See  Consolidated  Co.  v.  Curtis,  18f)2,  1  Q.  B.  495,  498. 

2  Qufere,  wliether  a  demand  would  be  necessary  ?     See  post,  p.  263. 
8  Oilman  v.  Hill,  36  N.  H.  311. 

*  See  Kent,  Com.  ii.  36.5. 

5  Aldred  v.  Constable,  6  Q.  B.  370,  381.  See  Sommer  ;-.  Wilt,  4  Serg. 
&  R.  19  ;  Stewart  v.  Cole,  40  Ala.  04^6.  So  to  pledge  the  goods  of  another 
without  authority.     Carpenter  v.  Hale,  8  Gray,  157. 


254  LAW  OF  TORTS.  [Part  IL 

version  if  he  had  no  right  to  sell  as  he  did,  apj^lies  equally 
Ignorance  of  ^^'l^ether  the  vendor  knew  or  did  not  know  the  true 
title :  inten-  State  of  the  title,  or  the  actual  limit  of  his  author- 
ity. Liability  for  converting  the  goods  of  another 
to  one's  own  use  does  not  depend  upon  the  intent  of  the  party 
exercising  the  act  of  dominion.  For  example:  The  defend- 
ant sells  and  delivers  a  liorse  of  the  plaintiff  to  a  third  person, 
the  defendant  having  bought  the  animal  from  one  who  had 
no  title  to  it,  though  the  defendant  supposed  the  contrary, 
and  supposed  himself  to  be  owner  of  the  horse  at  the  time  of 
the  sale  in  question.     The  defendant  is  liable  for  conversion.  ^ 

515.  Where  the  purchaser's  vendor  had  acquired  his  sup- 
posed title  from  the  plaintiff  by  means  of  a  sale  effected  by 
Title  acquired  false,  or  even  by  fraudulent,  representations,  the 
pj/chTse'for  ^^^^  would  be  different.  Fraud  of  this  charac- 
vaiue  without  ter  renders  the  sale  voidable  merely,  not  void; 
^°^^'^^-  the  consequence  of  which  is,  that  the  defrauded 
party  has  a  right  to  rescind  the  sale  only  so  long  as  the  prop- 
erty remains  in  the  hands  of  the  buyer  from  himself,  or  of  any 
one  claiming  under  him  who  is  not  a  purchaser  for  value  with- 
out notice. 2  Inasmuch  as  the  buyer,  notwithstanding  his 
fraud,  acquired  the  title  to  the  goods,  he  can  convey  that 
title;  and  more,  he  can  convey  a  better  right  than  he  had 
himself,  provided  he  sell  to  a  purchaser  for  value  without 
notice. 

516.  Hence,  not  only  would  such  purchaser  be  free  from 
liability  in  refusing  to  return  the  goods  to  the  defrauded 
party,  but  should  that  party  obtain  possession  of  them  and 
refuse  to  deliver  them  to  the  purchaser  from  the  intermediate 
seller,  he  (the  defrauded  party)  would  himself  be  liable  in 
trover.  For  example:  The  defendants,  having  previously 
been  owners  of  a  quantity  of  iron,  sell  the  same  to  P,  who 
gives  them  a  fraudulent  draft  (supposed  by  the  defendants  to 

1  Harris  v.  Saunders,  2  Strobh.  Eq.  370,  note;  Carter  v.  Kincrinan, 
10.3  Mass.  .517.  See  McCombie  v.  Davies,  6  East,  538;  Hilbery  ?;.  Hatton, 
33  L.  J.  Ex.  190;  Fowler  v.  Hollins,  L.  R.  7  Q.  B.  616;  s.  c.  7  H  L 
757. 

2  Clough  V.  Northwestern  Ky.  Co.,  L.  R.  7  Ex.  26. 


Chap.  XI.  §  3.]  CONVERSION.  255 

be  good)  for  the  amount  due  for  the  property.  P  then  sells 
the  iron  to  the  plaintiff,  who  buys  for  value,  and  without 
notice  of  the  fraud.  Subsequently,  the  defendants  discover 
the  fraud,  and  send  their  servant  to  take  away  the  iron,  now 
lying  in  port  in  a  lighter  alongside  the  plaintiff's  wharf.  The 
servant  takes  away  the  lighter  and  brings  the  iron  therein  to 
the  defendants.  The  plaintiff  lias  acquired  a  good  title  to  the 
iron,  and  the  defendants  are  guilty  of  a  conversion.^ 

517.  There  are  other  cases  in  which  a  person  may  by  pur- 
chase for  value  and  without  notice  acquire  a  better  right  than 
his  vendor  had.  A  purchaser  of  goods  from  one  who  has  by 
the  terms  of  sale  reserved  the  right  to  buy  back  the  property 
within  a  certain  time,  acquires  (or  may  by  such  a  transaction 
acquire)  the  title  to  the  property,  and,  having  a  good  title, 
he  may  convey  the  same  to  one  who  purchases  for- value  and 
without  notice,  so  as  to  cut  off  the  original  owner's  right 
to  repurchase.  The  consequence  is,  that  the  last  purchaser 
is  not  guilty  of  a  conversion  by  refusing  to  let  the  original 
owner  have  the  goods  upon  a  tender  by  him  of  the  amount  he 
was  to  pay  for  them,  though  made  within  the  time  agreed 
upon  between  him  and  his  buyer.  The  case  would  be  differ- 
ent however  in  regard  to  the  buyer  from  the  original  owner. 
His  act  in  making  the  sale  would  indeed  be  lawful  against 
the  seller,  if  the  seller  should  never  offer  to  repurchase ;  but 
if  the  seller  should  offer  to  repurchase,  and  tender  the  price, 
his  purchaser  would  be  bound  to  return  to  him  the  goods, 
and,  in  case  of  failure,  would  be  liable  according  to  the  terms 
of  the  contract. 

518.  If  however  the  sale  were  upon  condition  that  the  title 
should  not  pass  until  the  performance  of  some  condition,  the 
party,  not  having  acquired  the  title,  could  not  conditional 
convey  it ;  and  an  attempt  to  do  so  by  a  sale  and  s^^^- 
delivery  would,  by  the  better  rule,  subject  the  buyer  to  lia- 
bility for  conversion.  For  example:  The  defendants  pur- 
chase furniture  from  W,   who   had  taken  possession  of   the 

1  White  11.  Garden,  10  C.  B.  919.     See  for  the  converse  case  Cundy  v. 
Lindsay,  3  App.  Cas.  459. 


256  LAW   OF   TORTS.  [Part  II. 

same  upon  an  agreement  that  he  should  keep  it  six  months, 
and  if  within  tliat  time  he  should  pay  a  certain  sum  for  it,  it 
should  he  his ;  otlierwise,  he  was  to  pay  twenty-five  per  cent 
of  the  price  for  the  use.  The  sale  to  the  defendants  is  made 
shortly  after  W  takes  possession  of  the  furniture  and  he  fore 
payment  for  it.  A  refusal  hy  the  defendants  to  restore  the 
property  to  the  plaintiff  is  a  hreach  of  duty  to  him,  and  makes 
them  liahle  for  the  value  of  the  furniture.^ 

519.  According  to  recent  authorities,  the  holder  of  a  pledge 
or  pawn  has  such  an  interest  in  the  chattel  that  he  can  dis- 
pose of  the  same  by  sale  or  repledge  without  sub- 
jecting the  purchaser  or  repledgee  to  trover,  and 

without  .subjecting  himself  thereto,  except  in  either  case  upon 
a  failure  to  produce  the  pledge  or  pawn  upon  tender  of  the 
debt  to  secure  which  the  chattel  was  given.  For  example; 
The  defendant  has  taken  in  pledge  from  S  certain  bonds, 
which  the  plaintiff  had  pledged  to  S  for  the  security  of  a  debt 
smaller  than  the  amount  of  the  debt  of  S  to  the  defendant; 
the  repledge  being  made  before  the  maturity  of  the  original 
debt,^  and  before  payment  or  tender  thereof.  The  refusal 
of  the  defendant  to  return  the  bonds  to  the  plaintiff  except 
on  tender  to  the  defendant  of  the  amount  due  to  S  is  not  a 
conversion  by  the  defendant;  nor  would  the  act  of  S  amount 
to  a  conversion,  unless  ujjon  tender  of  the  debt  due  to  him  he 
should  fail  to  return  the  bonds.  ^ 

520.  One  who  has  a  special  propertj'  in  goods  may  or  may 
not  be  able  to  dispose  of  his  interest  therein,  according  to  the 

1  Sargent  r.  Gile,  8  N.  H.  325,  denying  Vincent  v.  Cornell,  1.3  Pick. 
294^.  According  to  the  latter  case,  the  conditional  buyer  would,  by  the 
sale,  transfer  his  own  right,  such  as  it  was.  See  Coggill  v.  Hartford  R. 
Co.,  3  Gray,  545  ;  Deshou  r.  Bigelow,  8  Gray,  159. 

^  That  is,  while  the  bonds  were  still  subject  to  redemption  by  the 
plaintiff. 

8  Donald  v.  Suckling,  L.  R.  1  Q.  B.  585 ;  Cases  294.  To  pledge,  with- 
out authority,  another's  proi>erty  held  in  simple  bailment  would  be  a 
very  different  thing.  Carpenter  v.  Hale,  8  Gray,  158,  infra,  p.  259.  Note 
also  the  distinction  in  Post  v.  Union  Bank,  42  N.  E.  Rep.  976  (111.); 
Carpenter  r.  Dresser,  72  Maine,  377,  in  case. 


Chap.  XI.  §  3.]  CONVERSION.  257 

nature  of  his  interest.  Not  every  special  property  is  alien- 
able.    In  many  cases  of  bailment,  the  special  ob-  „     .  , 

•^  .  .  Special  prop- 

jects  to  be  effected  forbid  that  the  bailee  should  erty:  aiiena- 
have  an   assignable  interest.      Such  is  the   case    ^°"" 

(1)  where  the  bailment  is  made  upon  a  trust  in  the  personal 
skill,  knowledge,  or  efficiency  of  the  bailee.     Such  is  the  case 

(2)  where  the  bailee  has  a  mere  lien  upon  the  goods  intrusted 
to  him.  And  such  is  the  case  (3)  where  the  bailment  is  at 
the  bailor's  will.  In  any  of  these  cases,  any  attempt  by  the 
bailee  to  assign  his  interest  in  the  property,  followed  by  de- 
livery of  possession,  puts  an  end  at  once  to  the  bailment. 
The  consequence  is,  that  the  assignee  acquires  no  title  or 
right,  and  becomes  liable  on  refusing  to  surrender  the  goods 
to  the  owner,  even  if  not  by  merely  taking  them. 

521.  There  is  however  a  large  class  of  bailments  where  the 
trust  is  accompanied  with  other  incidents  than  those  pertain- 
ing to  a  simple  bailment,  and  where  there  is  no  element  of 
personal  trust,  and  none  of  the  characteristics  of  an  estate  at 
will;  and  in  this  class  it  is  clear  that  the  bailee  has  an  assign- 
able interest.  There  can  be  no  conversion  therefore  in  the 
act  of  transferring  such  an  interest  merely,  provided  the  as- 
signee claims  only  the  rights  of  the  assignor;  because  the 
latter,  having  exercised  no  act  of  dominion  over  the  property, 
but  having  dealt  simply  with  his  own  interest,  did  not  rein- 
vest the  owner  with  a  right  of  possession.  An  attempt  by 
the  bailee  to  dispose  of  the  goods  absolutely  however  would 
be  different,  if  followed  by  a  delivery  of  them.  For  though 
a  bailee  could  not,  without  fault  on  the  part  of  the  owner  (by 
holding  him  out  as  having  a  right  to  sell  absolutely),  dispose 
of  anything  beyond  his  own  interest,  the  attempt  to  do  so, 
followed  by  the  overt  act,  would  be  to  exercise  dominion  over 
the  goods.  ^ 

522.  It  is  not  always  necessary  tliat  there  should  be  an 
appropriation  of  the  entire  property  held  in  order  to  effect  a 

^  See  ante,  p.  253  ;  Lancashire  Wagon  Co.  v.  Fitzhugh,  6  H.  &  N.  502; 
Cooper  V.  Willomatt,  1  C.  B.  672. 

17 


258  LAW   OF   TORTS.  [Part  II. 

conversion  of  the  whole.     If  the  part  appropriated  be  neces- 
sary to  the  use  of  the  rest  in  the  purpose  to  which 

Conversion  of     ^ ,  ,     ,  ,        ,  ,  -T  -,      • 

part  of  a  lot  of  the  whole  was  to  be  put,  as  by  rendering  an 
goods.  intended  sale  impracticable  except  at  a  sacrifice, 

the  part  appropriation,  if  wrongful,  may,  it  seems,  be  a  con- 
version of  the  whole.  For  example:  The  defendant,  a  bailee 
by  the  plaintiff  of  wine  in  casks  for  sale  by  the  cask,  consumes 
part  of  the  wine  in  one  cask.  This  may  (probably)  be  treated 
as  a  conversion  of  all  the  wine  in  that  cask.^  Again:  The 
defendant  finds  a  raft  of  timber  belonging  to  the  plaintiff 
lodged  on  a  sandbar  in  a  stream,  takes  possession  of  it,  hires 
a  man  to  assist  him  in  removing  part  of  it,  and  sells  the  rest 
to  him,  reserving  the  part  removed.  This  may  be  treated  as 
a  conversion  of  the  whole  raft.^ 

523.  It  appears  to  be  immaterial  to  the  plaintiff's  right  of 
recovery  for  the  whole,  that  what  remains  is  still  in  itself  as 
good  as  if  there  had  been  no  severance ;  the  plaintiff  has  the 
right  to  the  benefit  to  be  obtained  from  it  in  its  entirety, 
where  that  is  a  special  benefit.  This  principle  would  appl}^ 
to  cases  where  separate  articles  are  delivered  under  one  entire 
contract  of  bailment  or  lease,  even  though  the  articles  be 
sej)arately  enumerated  and  valued.  The  bailment  or  lease  is 
still  indivisible  in  contemplation  of  law,  and  conversion  of 
part  may  be  conversion  of  the  whole. ^ 

524.  If  however  separate  articles  be  severally  bailed  or 
leased,  by  distinct  contracts,  though  all  be  delivered  and 
bargained  for  at  the  same  time,  the  rule  of  law  is  (probably) 
different;  a  conversion  of  one  of  the  articles  or  parts  would 
not  in  such  a  case  operate  as  a  conversion  of  the  whole. 

525.  If  the  owner  of  goods  stand  by  and  j^ermit  them, 
without  objection,  to  be  sold  as  the  property  of  another,  the 
,  purchaser  acquires  a  good  title,  and  is  not  liable 

^°^  ^'    to   the  owner  for  a  refusal   to  deliver  them  to 

1  Philpott  V.  Kelley,  3  Ad.  &  E.  106,  semble.  The  case  was  not  so 
strong  as  the  facts  put  in  the  example.  See  Clendon  v.  Dinneford,  5  Car. 
&  P.  13 ;  Gentry  v.  Madden,  3  Pike,  127. 

2  Gentry  v.  Madden,  3  Pike,  127. 

*  See  Clendon  v.  Dinneford,  5  Car.  &  P.  13 j  Gtentry  v.  Madden,  supra- 


Chap.  XL  §  3.]  CONVERSION.  259 

him.  ^  For  example :  The  defendant  purchases  machinery  of  M, 
the  legal  title  to  which  at  the  time  of  the  sale  is  in  the  plaintiffs. 
The  machinery  is  sold  under  a  levy  of  execution  against  M, 
and  the  plaintiffs,  though  having  notice  of  the  levy,  and  hav- 
ing repeatedly  conversed  about  it,  before  the  sale,  with  the 
attorney  of  the  party  who  made  the  levy,  never  laid  any  claim 
to  the  property  until  after  the  sale.  The  defendant's  refusal 
to  surrender  the  machinery  to  the  plaintiff  is  not  a  breach  of 
duty.  2 

526.  Appropriating  an  article  held  in  bailment  to  a  use  not 
contemplated  at  the  time  of   the  contract  of   bailment  and 
not  authorized  by  law,  may  constitute  conversion.  Unauthorized 
For  example:  The  defendant  hires  of  the  plaintiff  use,  etc. 

a  horse  to  ride  to  York,  and  rides  it  beyond  York  to  Carlisle. 
This  is  a  conversion  of  the  animal,  entitling  the  plaintiff,  on 
return  of  the  property,  at  least  to  nominal  damages,  and  to 
actual  damages  if  any  loss  be  in  fact  sustained  by  reason  of 
the  act.**  Again:  The  defendant  lends  money  to  E,  taking 
from  him  by  way  of  security  a  quantity  of  leather,  which  had 
been  placed  in  E's  hands  by  the  plaintiff  to  be  made  up  into 
boots,  on  hire.  The  defendant  refuses  to  surrender  the 
leather  to  the  plaintiff.  He  is  guilty  of  conversion.*  Again: 
The  defendant  receives  from  the  plaintiff  shares  of  stock  to 
be  sold  on  commission.  Instead  of  selling,  the  defendant 
exchanges  the  stock  for  other  property.  This  is  a  conver- 
sion.'^ 

527.  It  has  sometimes  been  supposed  that  there  can  be  no 
right   of   action   for   conversion   in   such   cases,    unless    the 

1  Pickard  v.  Sears,  6  Ad.  &  E.  469 ;  Stephens  v.  Baird,  9  Cowen,  274  ; 
Dezell  V.  Odell,  3  Hill,  215. 

2  Pickard  v.  Sears,  2  Ad.  &  E.  469. 

8  Isaack  v.  Clark,  2  Bulst.  306 ;  Perham  v.  Coney,  117  Mass.  102. 

*  Carpenter  v.  Hale,  8  Gray,  157. 

5  Haas  V.  Damon,  9  Iowa,  589.  The  buyer  would  not  be  liable  if  the 
act  was  within  the  general  scope  of  the  ageufs  authority,  and  without 
notice  of  the  breach  of  duty. 


260  LAW   OF  TORTS.  [Part  11. 

chattel  was  injured  in  the  misappropriation.^  But  there  is 
Damaeetothe  ground  for  doubting  the  correctness  of  this  doc- 
property,  trine.  The  foundation  of  the  action  is  the  usurpa- 
tion of  the  owner's  right  of  property.  It  is  true,  the  pkiintiff 
in  trover  seeks  to  recover  the  value  of  the  thing  converted, 
but  if  he  has  received  it  back,  or  possibly  if  it  has  been  ten- 
dered back  in  proper  condition,'-^  he  will  be  allowed  to  recover 
no  more  (beyond  nominal  damages)  than  the  amount  of  his 
loss. 3  But  conversion  itself  is  a  cause  of  action;  it  is  not 
necessary  to  prove  special  damage. 

528.    In  all  the  foregoing  cases,   it  will  be  observed    that 

there  is  something  more  than  an  assertion,  by  word  of  mouth, 

of  dominion  over  the  chattel.     An  assertion  alone, 
Assertion  of 

authority  not  not  followed  by  any  act  m  pursuance  of  it,  such 
enoug  .  ^g  ^  refusal  to  surrender  the  chattel  to  the  person 

entitled  to  possession,  would  not  amount  to  a  conversion. 
There  must  be  some  unauthorized  interference  with  the 
plaintiff's  right  of  possession.  Even  an  attempted  exercise 
of  dominion,  without  right,  appears  to  be  insufficient  to  con- 
stitute a  conversion,  if  the  owner's  right  was  not  in  fact  in- 

1  Johnson  v.  Weedman,  4  Scam.  495;  Harvey  r.  Epes,  12  Gratt.  153. 
In  the  first  of  these  cases  a  horse  which  the  defendant  had  converted 
died  on  his  hands,  directly  after  but  not  in  consequence  of  the  conversion. 
It  was  held  that  the  owner  had  no  cause  of  action.  The  plaintiff  was  not 
entitled  to  recover  the  value  of  the  horse,  but  he  had  a  cause  of  action,  it 
should  seem. 

2  There  is  much  doubt  of  the  right  to  tender  back  the  converted  chat- 
tel, though  it  has  not  been  injured,  especially  if  the  conversion  was  'wil- 
ful.' See  Hart  v.  Skinner,  16  Vt.  138;  Green  v.  Sperry,  id.  390.  But  see 
Delano  v.  Curtis,  7  Allen,  470,  475.  Further  see  Yale  v.  Saunders,  16, 
Vt.  243 ;  Stephens  i\  Koonce,  103  N.  Car.  266.  The  true  view  of  the  case 
appears  to  be  that  the  party  wronged  has  an  election  whether  to  treat  the 
wrong  as  a  conversion  or  not,  and  the  question  then  is  whether  he  has  ex- 
ercised his  election. 

8  Fisher  v.  Prince,  3  Burr.  1363;  Earle  v.  Holderness,  4  Bing.  462; 
Cook  V.  Hartle,  8  Car.  &  P.  568 ;  Hewes  v.  Parkman.  20  Pick.  90,  95. 
Judgment  for  the  plaintiff  in  trover  does  not  vest  the  property  in  the  de- 
fendant. Lovejoy  v.  IMurray,  3  Wall.  1  ;  Brady  v.  Whitney,  24  Mich. 
154 ;  Brinsmead  v.  Harrison,  L.  R.  6  C.  P.  584. 


Chap.  XI.  §  3.]  CONVERSION.  261 

terrupted.  For  example :  The  defendant,  by  an  officer,  makes 
a  declaration  of  attachment  of  goods  which  he  knows  is 
ah-eady  duly  levied  ujjon  by  the  plaintiff,  has  a  keeper  ap- 
pointed and  then  suffers  the  owner  of  the  attached  property 
to  take  it  away  and  sell  it,  and  receives  part  of  the  avails. 
This  is  deemed  not  a  conversion.^ 

529.  Thus  far  of  cases  in  which  the  defendant  has  appropri- 
ated the  goods  in  question  to  his  own  use.  But,  as  has  been 
stated,  a  wrongful  act  of  dominion  may  be  com-  conversion  to 
mitted  without  so  appropriating  the  goods.  It  is  another's  use. 
enough  that  the  defendant  has  wrongfully  deprived  the  plain- 
tiff of  the  possession  of  his  goods  or  usurped  his  rights  over 
them,  though  for  the  benefit  of  a  third  person. 

530.  In  cases  of  this  kind  it  was  formerly  supposed  that 
an  intention  to  deprive  the  plaintiff  of  his  goods  was  neces- 
sary; but  this  has  been  decided  to  be  incorrect.  The  ques- 
tion still  is  whether  there  has  been  a  wrongful  exercise  of 
dominion  by  the  defendant ;  if  there  has  been  an  unauthorized 
act  which  deprived  the  plaintiff  of  his  property  permanently 
or  for  an  indefinite  time,  there  has  been  a  conversion. ^  If 
not,  the  contrary  is  true.  For  example:  The  defendant, 
manager  of  a  ferry,  receives  on  board  his  boat  the  plaintiff, 
with  two  horses.  Before  starting,  the  plaintiff  is  reported 
to  the  defendant  as  behaving  improperly,  and  though  he  has 
paid  his  fare  for  transportation,  and  the  defendant  tells  him 
that  he  will  not  carry  the  horses,  and  that  they  must  be 
taken  ashore,  the  plaintiff  refuses  to  take  them  off  the  boat, 
whereupon  the  defendant  puts  them  ashore,  and  has  them 
taken  to  a  livery  for  keeping.  The  plaintiff  goes  with  the 
boat,  and  the  next  day  sends  to  the  livery  stable  for  his 
horses.  In  reply,  the  plaintiff  is  told  that  he  can  have  his 
horses  by  coming  and  paying  the  charges  for  keeping,  other- 

^  Polley  V.  Lenox  Iron  Works,  2  Allen,  182,  adopting  the  language  of 
Heath,  J.,  in  Bromley  v.  Coxwell,  2  B.  &  P.  438,  that  '  to  support  an  action 
of  trover  there  must  be  a  positive  tortious  act.'  Here  the  defendant  was 
merely  '  suffered '  to  take  and  sell  the  property. 

2  Hiort  V.  Bott,  L.  R.  9  Ex   86,  89,  Biamwell,  B. 


262  LAW  OF  TORTS.  [Part  H 

wise  they  would  be  sold  to  pay  expenses.  They  are  sold 
accordingly,  and  damages  as  for  a  conversion  are  sought  of 
the  defendant.  The  action  is  not  maintainable,  since  there  is 
nothing  to  show  that  the  defendant  wrongfully  deprived  the 
plaintiff,  even  for  a  moment,  of  his  property.  ^ 

531.  Any  asportation  of  a  chattel  however  for  the  use  of  a 
third  person  amounts  to  a  conversion,  for  the  reason  that  the 
act  is  inconsistent  with  the  right  of  dominion  which  the  owner 
(or  person  entitled  to  possession)  has  in  it.^  And  the  same  is 
true  of  an  intentional,  or  possibly  negligent,  destruction  of 
the  chattel.^ 

532.  In  the  case  of  acts  of  co-owners  (cotenants)  it  is  held 
by  many  authorities  that  nothing  short  of  a  substantial  de- 
struction of  the  common  property  by  the  wrongful 
act  of  one  of  them  can  make  him  liable  to  the 

other  or  others  for  conversion."^  This  is  on  the  ground  that 
each  of  the  common  owners  has  a  right  to  the  entire  posses- 
sion and  use  of  the  property.  A  sale  and  delivery,  though 
absolute,  would  not  be  enough ;  for  the  purchaser  would  only 
become  a  co-owner  with  the  others.^  By  many  other  author- 
ities it  is  held  that  a  sale  and  delivery  of  the  property,  abso- 
lutely, would  suffice.^  Some  authorities  even  treat  the  mere 
withholding  of  the  chattel  by  a  cotenant  from  his  fellow,  or 
the  misuse  of  it,  or  the  refusal  to  sever  and  terminate  the 
cotenancy,  as  a  conversion.'^     But  it  is  not  necessary  by  any 

*  Foulds  V.  Willoughby,  8  M.  &  W.  540.  For  other  examples  see 
Simmons  v.  Lillystone,  8  Ex.  431 ;  Thorogood  v.  Robinson,  6  Q.  B.  769. 

*  Fouldes  V.  Willoughby,  supra.  ^  Id. 

4  Farrar  v.  Beswick,  1  M.  &  W.  682,  688,  Parke,  B. ;  Morgan  v.  Mar- 
quis, 9  Ex.  145;  Mayhew  v.  Herrick,  7  C.  B.  229;  Oviatt  v.  Sage, 
7  Conn.  95  ;  Barton  li  Burton,  27  Vt.  93  ;  Pitt  v.  Petway,  12  Ired.  69. 
Compare  the  case  of  trespass,  ante,  pp.  231-233. 

^  Morgan  v.  Marquis,  supra,  Parke,  B. 

6  Weld  V.  Oliver,  21  Pick.  559;  Wilson  v.  Read,  3  Johns.  175;  Dyck- 
man  v.  Valiente,  42  N.  Y.  549  ;  White  v.  Brooks,  43  N.  H.  402 ;  Dain  v. 
Coning,  22  Maine,  347 ;  Arthur  v.  Gayle,  38  Ala.  559 ;  Williams  v.  Chad- 
bourne,  6  Cal.  5.59. 

"<  Agnewt'.  Johnson,  17  Penn.  St.  373;  Fiquet  v.  Allison,  12  Mich.  328. 
See  Strickland  v.  Parker,  54  Maine,  263. 


Chap.  XI.  §  3.]  CONVERSIOX.  263 

of  the  authorities  that  there  should  be  a  physical  destruction 
of  the  property,  as  by  breaking  it  in  pieces ;  it  is  enough  that 
the  common  interest,  or  rather  the  plaintiff's  interest,  is  pi-ac- 
tically  destroyed,  as  by  a  sale  by  the  cotenant  and  the  buyer's 
taking  the  property  into  another  State,  there  to  be  kept.^ 

533.  If  an  act,  in  and  of  itself  being  a  conversion,  has  been 
committed,  the  injured  party  is  entitled  to  bring  suit  with- 
out first  demanding  his  property.     Tn  other  cases,  Demand  and 

a  demand  and  wrongful  refusal  will  be  necessary,  refusal, 
since  without  them  there  has  been  no  wrongful  exercise  of 
dominion. 2  For  examj)le:  The  defendant  collusively  pur- 
chases goods  from  a  trader  on  the  eve  of  the  trader's  bank- 
ruptcy, and  takes  the  property  into  his  own  possession.  The 
assignee  of  the  trader  brinofs  trover  without  a  demand.  The 
action  is  not  maintainable,  since  the  defendant  had  been 
guilty  of  no  conversion ;  the  trader  being  competent  to  con- 
tract, though  his  contract  of  sale  was  liable  to  impeachment.'* 

534.  Of  the  last  example,  it  should  be  observed  that  (in 
accordance  with  a  principle  already  stated)  the  fraud  of  the 
trader  and  the  defendant  did  not  make  the  sale  void ;  its  only 
effect  was  to  render  it  voidable.  The  contract  was  therefore 
binding  until  disaffirmed ;  and  a  disaffirmance  could  be  made 
only  by  a  demand  of  the  goods,  or  by  some  act  tantamount 
thereto.  And  the  demand  and  refusal,  that  is,  the  conver- 
sion, must  be  apart  from  the  bringing  of  suit,  when  such  acts 
are  necessary ;  for  the  cause  of  action  must  have  arisen  before 
suit  was  begun.  In  the  example  given,  if  the  defendant  had 
sold  the  goods,  or  improperly  detained  them  after  a  disaffirm- 
ance of  the  sale,  the  action  would  have  been  maintainable.* 

535.  Whether  a  demand  is  necessary  where  property  has 
been  sold  and  delivered  by  one  having  no  authority  to  sell, 
has  been  a  point  of  conflict  of  authority.  The  better  view 
however  is  that  the  unauthorized  sale  and  delivery  are  suffi- 

1  Pitt  V.  Petway,  12  Tred.  69. 

2  Chitty,  Pleading,  i.  157;  Nixon  v.  Jenkins,  2  H.  Black.  135. 
8  Nixon  V.  Jenkins,  supra. 

*  Bloxam  v.  Hubbard,  5  East,  407. 


264  LAW  OF  torts:  [P>rtII. 

cient  to  constitute  a  conversion,  and  hence  that  demand  be- 
fore suit  is  not  necessary.^  It  is  conceded  that  if  the  buyer 
has  taken  the  goods  away,  there  is  a  conversion. 2 

536.  A  very  common  instance  of  the  necessity  of  demand 
and  refusal  is  where  goods  have  been  put  into  the  hands  of 
another  for  a  special  purpose,  upon  agreement  to  return  them 
when  the  purpose  is  accomplished;  in  regard  to  which  the 
rule  is,  that  a  breach  of  the  contract  by  the  mere  failure  so 
to  return  the  goods  does  not  amount  to  a  conversion.  Be- 
fore the  bailee  can  be  liable  in  trover  in  such  a  case,  suppos- 
ing there  had  been  no  misappropriation  or  other  act  of 
dominion,  there  must  be  a  demand  for  the  goods  and  a  re- 
fusal to  restore  them.^  An  unqualified  refusal  will  itself,  in 
almost  all  cases,  constitute  a  conversion.* 

537.  A  qualified  refusal  to  deliver  goods  on  lawful  demand 
may  however  be  only  prima  facie  evidence  of  a  conversion.^ 
The  defendant  may  have  found  the  goods,  and  refused  to 
surrender  them  to  the  plaintiff  until  he  shall  have  proved  his 
right  to  them.  It  follows  from  what  has  already  been  said 
that  such  a  refusal  is  justifiable,  since,  if  the  plaintiff  is  not 
entitled  to  the  goods  by  right,  the  defendant  as  finder  has 
the  better  claim ;  and  he  cannot  or  may  not  know  that  the 
plaintiff  may  not  be  a  pretender  until  he  has  furnished  eyi- 
dence  that  he  is  not.  And  other  cases  of  the  kind  might  be 
stated;^  the  only  question,  where  the  refusal  to  return  is 
qualified,  is  whether  it  is  reasonable." 

1  Galvin  v.  Bacon,  2  Fairf.  28;  Parsons  v.  Webb,  8  Greenl.  38:  Stan- 
ley V.  Gaylord,  1  Cush.  536  ;  Trudo  v.  Anderson,  10  Mich.  357;  Whitman 
Mining  Co.  v.  Tritle,  4  Nev.  494.  Contra,  Marshall  v.  Davis,  1  Wend. 
109 ;  Barrett  v.  Warren,  3  Hill,  348  ;  Xash  v.  Mosher,  19  Wend.  431 ; 
Talmadge  v.  Scudder,  38  Penn.  St,  517  ;  Sherry  v.  Picken,  10  Ind.  375; 
Justice  V.  Wendell,  14  B.  Men.  12. 

2  Ely  V.  Ehle,  3  Comst.  506 ;  Kash  v.  Mosher,  supra ;  Marshall  v.  Davis, 
supra. 

'  Sevcrin  v.  Keppell,  4  Esp.  156. 

<  Alexander  v.  Southey,  5  B.  &  Aid.  247,  250. 

'  Biirronghes  v.  Bayne,  5  H.  &  N.  296 ;  Alexander  v.  Southey,  supra. 

«  See  Pollock,  Torts,  306,  307,  2d  ed. 

'  Alexander  v.  Southey,  5  B.  &  Aid.  at  p.  250. 


Chap.  XL  §  3.]  CONVERSION.  265 

538.  If  the  demand  be  not  made  upon  the  defendant  him- 
self, but  merely  left  at  his  house  in  his  absence,  it  seems  that 
a  reasonable  time  and  opportunity  to  restore  the  goods  should 
be  suffered  to  elapse  before  the  defendant's  non-compliance 
with  the  demand  can  be  treated  as  a  refusal  amounting  to  a 
conversion.  Non-compliance  with  the  demand  after  a  reason- 
able opportunity  has  been  afforded  to  obey  it  is  however 
clearly  tantamount  to  a  refusal,  and  is  presumptive  evidence 
of  a  conversion,  thus  requiring  the  defendant  to  explain  that 
the  omission  to  deliver  the  goods  was  justifiable.^ 

1  Chitty,  Pleading,  i.  160;  Thompson  v.  Rose,  16  Conn.  71;  White  v. 
Demary,  2  N.  H.  546. 


<^  6 


1^ 


.  V  '  CHAPTER  XII. 

INFRINGEMENT   OF  PATENTS,  TRADE  MARKS,  AND 

COPYRIGHTS. 

Statement  of  the  duty.  A  owes  to  B  the  duty  (1)  not  to 
make,  use,  or  vend,  without  B's  license,  a  thing  patented  by 
B  ;  (2)  not,  without  B's  license,  to  print,  publish,  or  import 
any  copyrighted  book  of  which  B  owns  the  coj^yright,  or, 
knowing  the  same  to  be  so  printed,  published,  or  imported, 
to  sell  or  expose  for  sale  any  copy  of  such  book ;  and  not  to 
violate  the  rights  of  B  in  respect  of  any  other  copyrighted 
matter  of  which  B  owns  the  copyright.^ 

§  1.   Of  Patents  :  What  must  be  Proved,  etc. 

539.  The  Revised  Statutes  of  the  United  States  grant  to 
patentees,  their  heirs  and  assigns,  for  the  term  of  seventeen 
years,  the  exclusive  right  to  make,  use,  and  vend  the  patented 
article  throughout  the  United  States  and  the  territories 
thereof ;  ^  and  they  allow  (besides  bills  in  equity  for  equi- 
table protection)  recovery  of  damages  in  an  action  on  the 
case  in  the  name  of  the  party  interested,  either  as  patentee, 
assignee,  or  grantee,^  on  proof  that  the  defendant  has  made, 
used,  or  sold  the  patented  article  without  license  of  such 
present  owner  of  the  patent.* 

540.  That  for  which  the  laws  give  patents  is  '  invention,' 

something,  that  is  to  say,  which  is  created  by  original  thought, 

,.     ,      not  something;  which  is  discovered  except  in  the 
'Invention':  =■  i         i- 

'  discovery':     narrower  sense  of  discovery.     When  therefore  the 

•  principle.'       -^ord  '  discovery  '  is  used  of  something  patented, 

*  It  would  make  the  statement  of  this  duty  far  too  prolix  to  specify 
all  of  the  rights  and  duties  arising  under  this  last  clause. 

2  U.  S.  Rev.  Sts.  §  4884.  »  lb.  §  4919. 

*  See  post,  p.  272. 


Chap.  XII.  §  1.]    INFRINGEMENT  OF  PATENTS,  ETC.  267 

it  must  be  understood  in  the  sense  of  '  invention.'  The  hiws 
of  nature  may  be  discovered  by  man,  but  they  cannot  be 
invented  by  him  ;  hence  discovery  of  them  cannot  be  pat- 
ented.^ '  Principle  '  or  '  scientific  principle  '  is  often  used  in 
this  sense  of  a  law  of  nature,  and  in  that  sense  falls  without 
the  patent  laws. 

541.  Invention  may  cover  processes  however  in  which 
any  of  the  laws  of  nature  are  called  into  use  ;  but  it  is  the 
process  (or  'principle'  or  'discovery'  in  that  sense)  that  is 
patentable,  not  the  law  of  nature,  though  that  law  may  never 
have  been  known  before.  And  then  with  regard  to  pro- 
cesses, it  is  not  processes  generally  that  may  be  patented. 
A  merely  mechanical  process,  or  rather  the  effect  produced 
by  such  a  process,  cannot  be  patented ;  or  as  the  law  has 
been  laid  down  from  the  bench,  '  a  man  cannot  have  a  patent 
for  the  function  of  a  machine,'  ^  for  that  would  be  to  prevent 
the  use  of  better  machines  for  performing  the  same  function 
or  attaining  the  same  result.^  The  processes  necessary  for 
making  the  machine  may  be  patented,  not  the  effect  or  result 
to  be  produced  (except  with  reference  to  patents  for  designs). 
In  a  word,  those  processes  are  patentable  which  look  to  results 
which  are  to  be  produced  otherwise  than  by  anj^  particular 
machine  or  by  means  not  purely  mechanical.^ 

542.  Anything  to  be  the  subject  of  a  valid  patent  must, 
besides  being  the  subject  of  invention,  be  new  and  useful.^ 

543.  Having   the   foregoing   considerations   in   mind,   the 
specific  subjects  of  patent,  by  the  laws  of  the  United  States, 
are  the  following :  arts,  machines,  manufactures,      Subjects  of 
compositions  of    matter,    and    designs.^      These      patent. 

1  Telephone  Cases,  126  U.  S.  531 ;  O'Reilly  v.  Morse,  15  How.  112 ; 
Walker,  Patents,  §  2,  2d  ed. 

2  Corning  v.  Burden,  15  How.  252,  208.  s  id. 

*  Walker,  §  6;  Mowry  v.  Whitney,  14  Wall.  620;  Tilghman  ?;.  Proctor, 
102  U.  S.  707;  Telephone  Cases,  126^  U.  S.  531. 

5  Fermentation  Co.  v.  Maus,  122  U.  S.  413,  427;  Telephone  Cases, 
126  U.  S.  5.33. 

6  Walker,  §§  2,  20. 


268  LAW  OF  TORTS.  [Part  II 

terras  are  not  intended  to  be  used  with  perfect  exactness, 
and  yet  within  certain  limits  they  are  intended  to  be  in  a 
general  way  exclusive  of  each  other ;  a  patent  would  however 
be  good,  generally  speaking,  if  it  fell  under  any  one  of  the 
subjects  named,  though  it  might  have  been  improperly  as- 
signed in  the  letters-patent  to  a  particular  subject.  But  not- 
withstanding their  inexactness,  the  terms  have  legal  limits, 
and  things  which  do  not  fall  within  the  legal  meaning  of 
any  of  them  cannot  be  covered  by  patents.  Thus  the  word 
'  manufacture  '  has  in  the  American  law  of  patents  a  narrow 
and  technical  meaning ;  it  appears  to  be  limited  to  such 
things  as  are  made  by  the  hand  of  man,  not  embraced  within 
the  legal  meaning  of  arts,  machines,  compositions  of  matter, 
or  designs.^ 

544.  Attention  will  now  be  turned  to  infringement.  This 
must  consist  in  the  wrongful  making,  using,  or  vending  the 
Infringement:  patented  thing.  But  the  statutes  leave  it  to  the 
variation.  courts  to  determine  what  constitutes  a  making, 
using,  or  vending. 

545.  Generally  speaking,  an  infringement  in  the  making 
takes  place  whenever  another  avails  himself  of  the  subject 
of  the  invention  of  the  patentee,  without  such  variation  as 
will  constitute  a  new  discovery  ;  or  an  infringement  is  a 
copy  made  after  and  agreeing  with  the  principle  laid  down 
in  the  specification  of  the  patent.^  When  a  person  has 
obtained  a  patent  for  a  new  invention  or  a  discovery  made 
by  his  own  ingenuity,  it  is  not  permitted  any  one  else,  by 
simply  varying  in  form  or  in  immaterial  particulars  the 
nature  or  subject-matter  of  such  invention  or  discovery, 
either  to  obtain  a  patent  for  it  himself,  or  to  use  it  without 
the  leave  of  the  patentee.  The  question  then  is,  in  actions 
for  damages  for  infringements  of  this  nature,  not  merely 
whether,  in  form  or  condition  such  as  might  be  more  or  less 
immaterial,  that  which  has  been  done  varies  from  the  specifi- 
cation, but  whether  in  reality,  in  substance,  and   in  effect, 

1  Walker,  §  17. 

2  Curtis,  Patents,  §  289 ;  Calloway  v.  Bleaden,  Webs.  Pat.  Cas.  523. 


Chap.  XII.  §  1.]     INFRINGEMENT   OF   PATENTS,   ETC.  269 

the  party  has  availed  himself  of  the  patentee's  invention,  in 
order  to  make  the  thing  in  question.^ 

546.  It  matters  not  therefore  that  the  person  complained 
of  had  succeeded  in  obtaining  a  patent  for  his  supposed  in- 
vention or  discovery  ;  if  it  be  in  substance  and  effect  a  copy 
of  the  plaintiff's  specification  and  patent,  he  will  be  guilty  of 
a  breach  of  duty  to  the  latter  by  the  making,  using,  or  vend- 
ing of  the  subject  of  it,  assuming  of  course  that  the  plaintiff's 
patent  is  valid. 

547.  With  regard  to  machines,  it  is  often  a  point  of  diffi- 
culty to  decide  whether  a  patent  is  infringed,  since  the  same 
elements  and  the  same  powers  must  be  employed  patents  of 
in  all  machines.  The  criterion  of  liability  is  machinery, 
however  easily  stated ;  it  is  whether  the  machine  complained 
of  operates  upon  the  same  '  principle '  with  the  one  patented. 
The  material  question  must  therefore  be,  not  whether  the 
same  elements  of  motion  or  the  same  component  parts  are 
used,  but  whether  the  given  effect  is  produced  substantially 
by  the  same  mode  of  operation,  and  the  same  combination  of 
powers  in  both  machines.  Mere  colorable  differences  or  slight 
improvements  cannot  affect  the  right  of  the  original  inventor.^ 

548.  It  follows  that  the  question  of  infringement  in  such 
eases  does  not  necessarily  depend  upon  the  consideration 
whether  the  mechanical  structure  of  the  machines  Mechanical 
is  alike.^  Whatever  be  the  mechanical  structure,  structure. 
the  question  is,  whether  the  later  machine  contains  the 
means  or  combination  found  in  the  previous  one ;  in  a  word, 
whether  the  new  idea  is  embodied  in  the  machine  complained 
of.  If  the  plaintiff's  combination  be  found  substantially 
incorporated  into  the  defendant's  machine,  then  the  latter's 

1  Walton  V.  Potter,  Webs.  Pat.  Cas.  585,  Tindal,  C.  J. ;  O'Reilly  v. 
Morse,  15  How.  62,  123;  McCormick  v.  Talcott,  20  How.  402,  405; 
Morley  Machine  Co.  v.  Lancaster,  129  U.  S.  263,  273. 

■•2  Odiorne  v.  Winkley,  2  Gal.  51 ;  McCormick  v.  Seymour,  2  Blatchf. 
240;  Blanchard  v.  Beers,  id.  418. 

8  O'Reilly  v.  Morse,  15  How.  62,  123 ;  Morey  i'.  Lockwood,  8  WalL 
230;  Ives  i-.' Hamilton,  92  U.  S.  426,  431. 


270  LAW   OF  TORTS.  [Part  II. 

mechanical  construction,  whatever  it  may  be,  is  in  law  but 
an  equivalent  for  the  mechanical  construction  of  the  plain- 
tiff's machine.  No  man  is  allowed  to  appropriate  the  benefit 
of  the  new  ideas  which  another  has  originated  and  put  to 
use,  because  he  may  have  been  enabled,  by  superior  mechan- 
ical skill,  to  embody  them  in  a  different  form.  In  appropri- 
ating the  idea,  he  may  have  appropriated  all  that  is  valuable 
in  the  new  machine.^ 

549.  The  mere  fact  that  the  machine  alleged  to  be  an  in- 
fringement does  its  work  better,  or  turns  out  more  work  in 
Better  work-  the  same  time,  than  the  patented  article,  does  not 
^^S-  show  that  there  is  no  infringement.  This  superi- 
ority might  be  due  merely  to  superior  construction  upon  the 
same  principle  with  that  of  the  patented  machine.  On  the 
other  hand  the  fact  that  the  defendant's  machine  is  inferior 
to  that  of  the  plaintiff  does  not  show  that  it  is  not  an  in- 
fringement.2  Either  result  is  only  to  be  considered  in  its 
bearing  upon  the  question  whether  the  principle  of  the 
machine  complained  of  is  actually  and  substantially  different 
from  that  of  the  plaintiff.^  Of  course,  if  the  greater  or  lesser 
efficiency  be  produced  by  reason  of  the  use  of  means  which 
are  different  in  substance  from  those  employed  in  the  patented 
machine,  and  are  not  their  mechanical  equivalent,  there  is  no 
infringement.* 

550.  An  infringement  is  also  committed,  though,  besides 
being  equivalent  to  the  thing  patented,  the  later  machine 
Additional  accomplishes  some  other  advantage  beyond  that 
effect.  effected  by  the  patent  machine.  The  new  machine 
is  still  an  infringement,  so  far  as  it  covers  the  object  of  the 
patent.     For   example :    The   defendant,  for   the  purpose  of 

1  Blanchard  v.  Beers,  supra. 

2  Waterbury  Brass  Co.  v.  Miller,  9  Blatchf.  77 ;  Chicago  Fruit  House 
Co.  V.  Busch,  2  Bi.ss.  472. 

8  Id. ;  Gray  v.  James,  Peters,  C.  C.  394 ;  Pitts  v.  Wemple.  1  Biss.  87  ; 
Carter  v.  Baker,  1  Sawy.  512;  Elizabeth  v.  Pavement  Co.,  97  U.  S.  r2d, 
137 ;  Morley  Machine  Co.  v.  Lancaster,  129  U.  S.  263. 

*  Cases  just  cited. 


Chap.  XII.  §  1.]     INFRINGEMENT   OF  PATENTS,   ETC.  271 

giving  signals  by  telegraph,  uses  the  earth  for  effecting  a 
return  circuit;  the  plaintiffs  having  a  patent  for  giving 
signals  by  means  of  electric  currents  transmitted  through 
metallic  currents.  The  machinery,  aside  from  the  return 
circuit,  used  by  the  defendant  is  the  same  as  that  covered 
by  the  plaintiff's  patent,  and  is  used  without  license.  The 
defendant  is  liable,  though  the  use  of  the  earth  for  effecting 
a  return  circuit  is  an  improvement  in  the  art  of  telegraphing.^ 

551.  Where  however  the  means  employed  in  the  later 
machine  are  different,  not  merely  in  form,  but  in  substance, 
and  consist  in  combinations  differing  in  substance.  Difference  in 
there  is  no  infringement,  though  the  object  be  to  substance. 
produce  the  same  result.  For  example :  The  defendant  con- 
structs a  machine  for  obtaining  a  current  of  air  between  the 
grinding  surfaces  of  mill-stones,  by  means  of  a  rotating  vane, 
for  effecting  which  the  plaintiff  also  has  a  machine,  protected 
by  patent.  The  plan  of  the  defendant  is  to  remove  from  the 
centre  of  both  stones  a  large  circular  portion,  and  in  this 
space,  opposite  the  opening  between  the  two  stones,  to  place 
a  fan,  by  the  rapid  rotation  of  which  a  centrifugal  motion  is 
given  to  the  air,  driving  it  between  the  stones.  The  plan  of 
the  plaintiff  consists  of  a  portable  ventilating  machine,  blow- 
ing by  a  screw  vane,  which  causes  a  current  of  air  parallel  to 
the  axis  of  the  vane,  being  attached  externally  to  the  eye  of 
the  upper  millstone  ;  and  the  screw  vane  being  thus  set  in 
rapid  motion,  the  air  is  forced  through  the  eye  into  the  centre 
of  the  stones,  and  so  finds  its  way  out  again.  The  defendant's 
machine  is  not  an  infringement  upon  the  plaintiff's.^ 

552.  To  substitute  in  place  of  some  one  element  in  a  com- 
position of  patented  matter  a  mere  known  equivalent  is  an 
infringement,  because,  though  the  patentee  may        . 

not  have  expressly  mentioned  such  equivalent  in 
his  claim,  he  is  understood  to  have  included  it,  and  in  con- 
templation of  law  he  has  included  it.     However,  if  he  should 
confine  himself  to  the  specific  equivalents  mentioned  in  his 
claim  for  the  patent,  by  excluding  all  others,  the  case  would 

1  Electric  Tel.  Co.  v.  Brett,  10  C.  B.  838. 

2  BoviU  V.  Pimm,  11  Ex.  718. 


272  LAW  OF  TORTS.  [Part  IL 

be  different,  and  there  would  be  no  infringement  in  the  use 
of  any  of  such  other  equivalents.^ 

553.   With  regard  to  patents  for  designs,  the  patent  laws 

are  intended  to  give  encouragement  to  the  decorative  arts. 

Thev  contemplate  not  so  much  practical  utility 
Patents  for  -^  tx  •     ^i  -x     if       i  •   i 

design:  re-       as  appearance.     It  is  the  appearance  itselt  which 

semblance.  makes  the  article  salable,  and  the  mode  in  which 
these  appearances  are  produced  has  little,  if  anything,  to  do 
with  giving  increased  salableness  to  the  article.  The  appear- 
ance then  furnishes  the  test  of  identity  of  design. 2  Mere 
difference  of  lines  in  the  drawing  or  sketch,  a  greater  or  less 
number  of  lines,  or  slight  variances  in  configuration,  if  insuf- 
ficient to  change  the  effect  upon  the  eye  of  the  ordinary 
observer,  will  not  destroy  the  substantial  identity.  An  en- 
graving which  has  many  lines  may  present  to  the  ordinary 
eye  the  same  picture,  and  to  the  mind  the  same  idea,  as  an- 
other with  fewer  lines.  If  then  there  be  identity  of  design 
(not  to  an  expert,  but)  to  the  ordinary  observer,  there  is  an 
infringement  upon  the  patented  design.  For  example:  The 
defendant  vends  a  carpet  containing  figures  of  flowers  ar- 
ranged in  wreaths  different  in  fact,  upon  close  observation, 
from  the  plaintiff's  patented  design  for  wreaths  of  flowers 
upon  carpets;  the  flowers  on  the  defendant's  carpet  being 
fewer  in  number  than  those  on  the  plaintiff's,  and  the  wreaths 
being  placed  at  somewhat  wider  distances.  But  this  differ- 
ence would  not  be  detected  except  upon  a  close  comparison. 
The  defendant  is  liable  to  the  plaintiff  in  damages.^ 

554.  Under  the  statute,  the  mere  making,  except  for  ex- 
periment, without  the  sale  or  use  of  the  articles  or  object 
Making  for  patented,  is  an  infringement  of  the  rights  of  the 
experiment,  patentee ;  and  it  follows  that  such  an  act  may  be 
treated  as  a  ground  of  liability,  though  no  damage  be  sus- 

^  Byam  v.  Farr,  1  Curtis,  C.  C.  260;  Woodward  v.  Morrison,  Holmes, 
124,  131 ;  Tyler  v.  Boston,  7  Wall.  327. 

•^  Gorham  Co.  v.  White,  14  Wall.  511,  528. 
8  Gorham  Co.  v.  White,  14  Wall.  511. 


Chap.  XII.  §  1.]     INFRINGEMENT   OF   PATENTS,   ETC.  273 

tained  by  the  patentee.  He  will  be  entitled  to  recover  nom- 
inal damages  at  least;  ^  and  perhaps  substantial  damages 
should  the  act  be  repeated. ^  It  is  equally  a  ground  of  lia- 
bility to  use  an  article  which  is  an  infringement  of  a  patent, 
though  the  party  using  it  did  not  make  it;  and  the  same  is 
true  of  the  sale  of  such  an  article.  Each  of  these  acts  is  an 
invasion  of  the  patentee's  right,  and  the  party  doing  the  act 
is  liable,  however  innocent  of  any  intention  to  injure  the  true 
patentee,  or  even  of  knowledge  of  the  existence  of  the  patent.^ 

555.  Any  one  may,  without  license,  make  a  patented  ar- 
ticle for  mere  experiment,  or  for  the  purpose  of  ascertaining 
the  sufficiency  of  the  thing  to  produce  the  effects  claimed  for 
it,  or  jjerhaps  when  it  is  made  for  mere  amusement,  or  as  a 
model. ^  But  it  must  not  be  exposed  for  sale,  nor  must  it 
have  been  made  for  the  purpose  of  pecuniary  profit,  though 
experiment  was  also  part  of  the  purpose.^ 

556.  The  unauthorized  sale  of  a  patented  machine,  to  con- 
stitute an  infringement,  must  be  a  sale,  not  of  the  materials 

of  a  machine,  either  separate  or  combined,  but  of 

T  ,  .  •  1      1  •    1  1  Unauthorized 

a  complete  machine,  with  the  right,  expressed  or  sale  of  mate- 
implied,  of  using  the  same  in  the  manner  secured  "*^^* 
by  the  patent.  It  must  be  a  tortious  sale,  it  has  been  said, 
not  for  the  purpose  merely  of  depriving  the  owner  of  the 
materials,  but  of  the  use  and  benefit  of  his  patent,  —  a  point 
however  of  some  doubt,  as  has  already  been  observed.  The 
sale  of  the  materials  merely  cannot,  it  is  clear,  amount  to 
an  infringement.  For  example:  The  defendant,  a  deputy 
sheriff,  having  an  execution  against  the  plaintiff's,  levies  upon 
and  sells  the  materials  of  three  patented  machines,  of  which 

1  Whittemore  v.  Cutter,  1  Gal.  429. 

-  Compare  the  rule  in  trespass  to  land,  ante,  p.  236. 

3  Parker  v.  Haworth,  4  McLean,  370,  373 ;  Bate  Refrigerator  Co.  v. 
Gillett,  31  Fed.  Pvep.  809,  815. 

*  Beedle  v.  Bennett,  122  U.  S.  71,  77;  Elizabeth  v.  Pavement  Co.,  97 
U.  S.  126,  134;  Frearson  v.  Loe,  9  Ch.  D.  48.  See  Whittemore  v.  Cutter, 
1  Gal.  429 ;  Sawin  v.  Guild,  id.  485 ;  Jones  v.  Pearce,  Webs.  Pat.  Cas. 
125. 

6  Smith  Manuf.  Co.  v.  Sprague,  123  U.  S.  249,  256. 

18 


274  LAW  OF   TORTS.  [Part  H. 

the  plaintiffs  are  owners,  the  materials  being  at  the  time  com- 
plete and  fit  for  operation  as  machines.  The  purchaser  has 
not  put  any  of  the  machines  into  operation;  nor  is  the  sale 
made  with  intent  that  he  should  do  so.  This  is  not  a  breach 
of  duty  to  the  plaintiffs.^ 

557.  The  sale  or  use  of  the  product  of  a  patented  machine 
is  no  violation  of  the  exclusive  right  to  use,  construct,  or 
Sale  of  ssll  the  machine  itself ;  and  the  patent  for  a  dis- 
product.  covery  of  a  new  and  improved  process,  by  which 
any  product  or  manufacture  before  known  in  commerce  may 
be  made  in  a  better  and  cheaper  manner,  grants  nothing  but 
the  exclusive  right  to  use  the  process.  Where  a  known  man- 
ufacture or  product  is  in  the  market,  purchasers  are  not  bound 
to  inquire  whether  it  was  made  on  a  patented  machine  or  by 
a  patented  process. ^  But  if  the  patentee  be  the  inventor  or 
discoverer  of  a  new  manufacture  or  composition  of  matter 
not  known  or  used  by  others  before  his  discovery  or  invention, 
his  franchise  or  right  to  use  and  vend  to  others  to  be  used  is 
the  new  composition  or  substance  itself.  The  product  and 
the  process,  in  such  a  case,  constitute  one  discovery,  the  ex- 
clusive right  to  make,  use,  or  vend  which  is  secured  to  the 
patentee.  For  example :  The  defendants,  a  railroad  company, 
use,  without  license  of  the  plaintiff,  a  certain  article  called 
vulcanized  India-rubber  in  their  car-springs,  for  the  manu- 
facture of  which  substance  the  plaintiff  has  a  valid  patent; 
his  specification,  though  describing  primarily  a  process,  still 
showing  that  the  purpose  and  merit  of  the  process  were  the 
production  of  a  valuable  fabric.  The  plaintiff  has  a  patent 
in  the  article  itself,  and  the  act  of  the  defendants  is  a  breach 
of  duty  to  him. 3 

558.  Finally,  the  Revised  Statutes  of  the  United  States 
provide  that  every  person  who,  in  any  manner,  marks  upon 
False  mark  of  ^"7  thing  made,  used,  or  sold  by  him  for  which 
patent.  he  has  not  obtained  a  patent,  the  name  or  any  imi- 

^  Sawin  v.  Guild,  1  Gal.  485. 

2  See  ante,  p.  267. 

3  Goodyear  v.  Railroad,  2  Wall.  C.  C.  356. 


Chap.  XII.  §  2.]    INFRINGEMENT  OE  PATENTS,  ETC  275 

tation  of  the  name  of  any  person  who  has  obtained  a  patent 
therefor,  without  the  consent  of  such  patentee,  or  his  assigns 
or  legal  representatives; -or  who,  in  any  manner,  marks  upon 
or  affixes  to  any  such  patented  article  the  word  '  patent '  or 
'  patentee, '  or  the  words  '  letters  patent, '  or  any  word  of  like 
import,  with  intent  to  imitate  or  counterfeit  the  mark  or 
device  of  the  patentee,  without  having  the  license  or  consent 
of  such  patentee  or  his  assigns  or  legal  representatives;  or 
who,  in  any  manner,  marks  upon  or  afhxes  to  any  unpatented 
article  the  word  '  patent, '  or  any  word  importing  that  the 
same  is  patented,  for  the  purpose  of  deceiving  the  public, 
shall  be  liable  for  every  such  offence,  to  a  penalty  of  not  less 
than  one  hundred  dollars,  with  costs;  one-half  of  said  penalty 
to  the  person  who  shall  sue  for  the  same,  and  the  other  to  the 
use  of  the  United  States,  to  be  recovered  by  suit  in  any  dis- 
trict court  of  the  United  States  within  whose  jurisdiction 
such  offence  may  have  been  committed.^ 

§  2.    Of  Trade  Marks. 

559.  The  law  relating  to  trade  marks  has  been  changing  its 
point  of  view,  if  not  its  grounds,  in  recent  times,  and  becom- 
ing, as  has  been  observed  in  another  place,2assim- 

ilated  to  the  law  of  property.  The  old  mode  of  ground :  in- 
suing  for  deceit  is  falling  into  disuse  as  a  remedy  "'^^'^  ^°^" 
for  infringing  a  trade  mark,  in  the  light  of  the  better  remedy 
afforded  by  equitable  proceedings.  But  it  is  not  likely  that 
the  law  will  advance  to  the  point  of  assimilating  the  law  of 
trade  marks  so  far  with  the  law  of  property  (as  e.  g.  the  law 
of  patents)  as  to  make  it  safe  to  say  that,  for  the  purpose  of 
recovering  damages,  the  old  authorities,  which  make  the 
action  virtually  an  action  for  deceit,  are  obsolete'.^ 

560.  The  subject,  with  this  suggestion,  must  then  be 
dropped  in  this  connection;  for  while  an  ample  remedy  is 
provided  upon  the  footing  of  a  property  right  in  the  trade 

1  Rev.  Sts.  §  4901.  2  Ante,  p.  84,  note. 

^  See  Reddaway  i'.  Bentham  Hemp-spinning  Co.,  1892,  2  Q.  B.  639, 
644,  646. 


276  LAW  OF   TORTS.  [Part  IL 

mark  where  damages  are  not  sought,  it  is  to  be  borne  in  mind 
that  this  book  is  a  treatise  relating  to  actions  for  damages.^ 
In  a  word,  an  injunction,  or  nominal  damages,  may  be  had 
in  respect  of  the  infringement  of  a  trade  mark  right,  without 
further  requirement;  but  it  is  not  clear  whether  substantial 
damages  can  be  obtained  without  proof  of  fraud  as  inter- 
preted by  the  courts  in  the  law  of  deceit. 

§  3.    Of  Copyrights  :  What  must  be  Proved,  etc. 

561.  The  Revised  Statutes  of  the  United  States  grant  to 
any  citizen  of  the  United  States  or  resident  therein,  who  shall 
What  may  be  be  the  author,  ^  inventor,  designer,  or  proprietor 
copyrighted,  of  any  book,^  map,  chart,  dramatic  or  musical  com- 
position, engraving,  cut,  print,  or  photograph,*  or  negative 
thereof,  or  of  a  painting,^  drawing,  chromo,  statue,  statuary, 
and  of  models  or  designs  intended  to  be  perfected  as  works 
of  the  fine  arts,  and  the  executors,  administrators,  or  assigns 
of  any  such  person,  who  complies  with  certain  preliminary 
requirements,  the  sole  liberty  of  printing,  reprinting,  pub- 
lishing, completing,  copj'ing,  executing,  finishing,  and  vend- 
ing the  same ;  and,  in  the  case  of  a  dramatic  composition,  of 
publicly  performing  or  representing  it,*'  or  causing  it  to  be 
performed  or  represented  by  others ;  and  to  authors  the  priv- 
ilege of  reserving  the  right  to  dramatize  or  to  translate  their 
own  works. '^     Proof  of  ownership  of  the  copyright  and  the 

1  See  Cooley,  Torts,  423-430,  2d  ed.  The  authority  of  Congress  over 
trade  marks  is  limited.     Trade  I\Iark  Cases,  100  U.  S.  82. 

2  One  may  be  an  '  author '  of  a  verbatim  report  of  another's  public 
lectures.  Walter  v.  Lane,  1900,  A.  C.  539.  As  to  class-room  lectures  see 
Caird  r    Sime.  12  App.  Cas.  326.  infra,  note  2.  p.  277. 

8  A  newspaper  is  a  'book.'     Walter  v.  Lane,  supra. 

4  See  Burrow  Lithographic  Co.  v.  Sarony,  111  U.  S.  53,  showing  that 
the  photograph  should  represent  an  original  conception. 

5  Parton  v.  Prang,  3  Cliff.  537. 

6  See  The  lolanthe  Case,  15  Fed.  Rep.  439;  The  Mikado  Case,  25 
Fed.  Rep.  183;  Tompkins  v.  Halleck,  133  Mass.  32  (on  hearing  and  com- 
mitting  to  memory  a  play,  then  writing  it  out  and  presenting  it ;  this 
was  held  an  infringement,  overruling  Keene  v.  Kimball,  IG  Gray,  54"i). 

T  Rev.  Sts.  §  4952. 


Chap.  XII.  §  .3.]     INFRINGEMENT   OF   PATENTS,   ETC.  277 

sale  or  other  act  protected,  without  license,  of  articles  covered 
by  it,  will  make  a  presumptive  case. 

562.  The  copyright  is  to  be  good  for  twenty-eight  years, 
with  the  right  of  renewal  for  fourteen  years  more.^  And  any 
person  who,  without  consent  of  the  owner  of  the  copyright, 
obtained  in  writing  signed  by  two  or  more  witnesses,  shall 
print,  publish,  or  import  any  book,  or  knowing  the  same  to 
be  so  printed,  published,  or  imported,  shall  sell  or  expose  to 
sale  any  copy  of  such  book,  shall  forfeit  every  copy  thereof, 
and  be  liable  in  damages  for  the  act.^ 

563.  To  the  author  of  copyrighted  matter  thus  belongs  the 

exclusive  right  to  take  all  the  profits  of   publication  which 

the  sale  of  the  copyrighted  matter  may  produce.  ^^^^ 

And  the  author's  exclusive  right  extends  to  the  right  covers : 
,     ,  ,     .  ,  J      £   •.      infringement, 

whole  copy,  and,  m  a  sense,  to  every  part  or  it. 

It  follows  that  an  infringement  of  a  man's  copyright  may  be 

committed  (1)  by  reprinting  the  whole  cof)y,  verbatim ;  (2)  by 

reprinting,  verbatim,  a  part  of  it ;  (3)  by  imitating  the  whole 

or  a  part,  or  by  reproducing  the  whole  or  a  part  with  colorable 

alterations  or  disguises,  intended  to  give  to  it  the  character  of 

a  new  work ;  (4)  by  reproducing  the  whole  or  a  part  under  a 

colorable  abridgment,  not  fairly  constituting  a  new  work. 

564.  With  regard  to  these  forms  of  infringement,  it  is  to 
be  observed  that  the  defendant's  intention  does  not  enter 
into  the  determination  of  the  question  of  piracy.^ 

The  question  is    one    of   property,  analogous   to 
cases  of  trespass  or  conversion ;  the  exclusive  privilege  which 
the  law  secures  to  authors  may  be  equally  violated  whether 
the  work  complained  of   has  been  published  with  or  with- 
out the  animus  furandi.     The  fact  that  a  party  has  honestly 

1  Rev.  Sts.  §§  4953,  4954. 

2  Rev.  Sts.  §  4904.  The  author  has  property  at  common  law  m  his 
manuscript.  Wheatou  v.  Peters,  8  Peters,  591,  657.  (As  to  letters,  see 
Perceval  v.  Phipps,  2  Ves.  &  B.  19.)  But  copyright  is  a  matter  of  statute 
purely.  Id.  ;  Albert  v.  Strange,  1  Macn.  &  G.  25.  The  author  of  class- 
room lectures  will  be  protected  at  common  law  against  unauthorized  pub- 
lication. Caird  v.  Sime,  12  App.  Cas.  326.  See  Walter  v.  Lane,  1900, 
A.  C.  539,  .547. 

8  Clement  v.  Maddick,  1  Giff.  98. 


278  LAW  OF  TORTS.  [Part  IL 

mistaken  the  extent  of  his  right  to  avail  himself  of  the  works 
of  others  will  not  excuse  him  from  liability.^ 

565.  Piracies  of  the  nature  of  those  mentioned  under  the 
first  head  are  seldom  committed,  and  they  may  be  dismissed 
with  the  observation  that  it  matters  not  how  much  original 
and  valuable  matter  may  be  incorporated  with  the  reprint  of 
the  copyrighted  matter.  The  act  is  still  an  infringement, 
though  the  public  might  derive  great  benefit  from  the  supe- 
rior value  of  the  work. 

566.  Piracies  of  the  second  class  are  more  difficult  to  deal 
with.  The  quantity  of  matter  cannot  be  a  true  criterion  of 
Quantity  of  the  commission  of  an  infringement,^  since  only  a 
matter  taken.  gj^^^U  portion  of  a  work  may  be  pirated,  and  this 
the  most  important  part  of  the  work,  or  a  very  important 
part  of  it.  For  example:  The  defendant  makes  use,  in  a 
published  volume  of  judicial  decisions,  of  the  head-notes,  or 
marginal  notes,  of  the  plaintiff  in  a  series  of  volumes  of  re- 
ports, of  which  the  plaintiff  owns  the  copyright.  This  is  an 
infringement  of  the  plaintiff's  rights,  for  which  the  defendant 
is  liable ;  though  such  notes  constitute  but  a  small  part  of  the 
plaintiff's  work.^ 

567.  It  may  be  doubtful  if  any  part  of  the  work  of  another 
may  be  taken  animo  furandi.*  How  much  may  be  honestly 
Animo  taken,  that  is,  taken  without  any  purpose  of  sup- 
furandi.  planting  the  copyright  work,  is  the  difficult  ques- 
tion. It  is  clear  that,  if  so  much  be  taken  as  to  diminish 
sensibly  the  value  of  the  original,  an  infringement  has  been 
committed.^  It  is  not  only  quantity,  but  value  also,  that 
must  be  taken  into  the  consideration.^ 

^  Emerson  i:  Davies,  3  Story,  768. 

2  Bramwell  i'.  Halcomb,  3  Mylne  &  C.  737  ;  Bradbury  v.  Hotten,  L.  R. 
8  Ex.  1. 

3  See  Wheaton  v.  Peters,  8  Peters,  591 ;  Saunders  v.  Smith,  3  Mylne 
&  C.  711  ;  Sweet  v.  Sweet,  1  Jur.  212  ;  Sweet  v.  Benuing,  16  C.  B.  459. 

*  Mr.  Godson  thinks  it  cannot.  Patents  and  Copyrights,  216.  Mr. 
Curtis,  contra.     Copyrights,  251,  note. 

5  Bramwell  v.  Halcomb,  3  Mylne  &  C.  737;  Saunders  v.  Smith,  id. 
711.  '      «  Id. 


Chap.  XII.  §  3.]     INFRINGEMENT   OF  PATENTS,   ETC.  279 

568.  In  deciding  questions  of  this  sort,  it  has  been  observed 

that  the  nature  and  objects  of  the  selections  made  must  be 

taken  into  account,  the  quantity  and  value  of  the    „  ^ 

\     T  1-11  Nature  and 

materials  used,  and  the  extent  to  which  the  use    objects  of 

may  prejudice  the  sale  or  diminish  the  profits,  or    ^®  action. 

supersede  the  objects  of  the  original  work.^     Many   mixed 

ingredients  enter  into  the  discussion  of  such  questions.     In 

some    cases,   a  considerable  portion  of   the  materials  of  the 

original  work  may  be  fused  into  another  work,  so  as  to  be 

distinguishable  in  the  mass  of  the  latter;  but  yet  the  latter, 

having  a  distinct  purpose  from  the  copyrighted  book,  may 

not  be  an  infringement.     In  other  cases  the  same  materials 

may  be  used  as  a  distinct  feature  of  excellence,  and  constitute 

the  chief  value  of  the  new  work,  and  then  the  latter  will  be 

an  infringement. 2     Be  the  quantity  then  large  or  small,   if 

the   part   extracted   furnish  a  substitute  for  the  work  from 

which  it  is  taken,  so  as  to  work  an  appreciable  injury,  there 

is  an  actionable  violation  of  copyright.** 

569.  A  person  is  entitled  to  make  a  reasonable  amount  of 
quotation  from  a  copyrighted  production  by  way  of  review 
or  criticism;  but,  under  the  pretence  of  review,  Reasonable 
no  one  has  the  right  to  publish  a  material  part  of  quotation, 
the  author's  work ;  *  that  is,  such  a  part  as  might  have  a  sen- 
sible effect  in  superseding  the  original,^  —  not  perhaps  as  a 
whole,  but  quoad  hoc.^ 

570.  In  regard  to  imitations  of  the  whole  or  part  of  a 
cop3righted  work,  the  difficulty  of  determining  the  question 
of  piracy  is  scarcely  less.     There  may  be  likeness 

without  copying;   and,   though   the   copyrighted 

work  may  have  suggested  the  new  one,  the  imitation  may 

not  be  close  enough  to  amount  to  infringement.     The  ques- 

1  Folsom  V.  Marsh,  2  Story,  100. 

2    Id. 

8  Curtis,  Copyright,  245 ;  Folsom  v.  Marsh,  2  Story,  100. 

4  See  Wilkins  v.  Aiken,  17  Ves.  422,  424. 

6  Roworth  V.  Wilkes,  1  Cami^b.  94.  •  Curtis,  246,  note. 


280  LAW  OF  TORTS.  [Part  IL 

tion  however  is,  whether  the  variation  be  substantial  or 
merely  colorable.^  For  example:  The  defendant  is  alleged 
to  have  infringed  the  plaintiff's  copyright  in  an  Arithmetic 
by  imitating  its  plan  and  contents.  The  test  of  the  defend- 
ant's liability  is  whether  he  has  in  fact  used  the  plan,  arrange- 
ments, and  illustrations  of  the  plaintiff  as  the  model  of  his 
own  work,  with  colorable  alterations  and  variations,  only  to 
disguise  the  use  thereof,  or  whether  the  defendant's  w'ork  is 
the  result  of  his  own  labor,  skill,  and  use  of  common  mate- 
rials and  common  sources  of  knowledge,  open  to  all  men, 
the  resemblances  being  accidental,  or  arising  from  the  nature 
of  the  work ;  —  whether,  in  short,  the  defendant's  work  be 
quoad  hoc  a  servile  or  evasive  imitation  of  the  j^laintiff's 
w^ork,  or  a  bona  fide  original  composition  from  other  common 
or  original  sources.^ 

571.  In  cases  of  this  kind,  it  is  not  enough  to  establish  a 
violation  of  duty  that  some  parts  or  pages  of  the  later  work 
bear  resemblances  in  methods,  details,  and  illustrations  to 
the  copyrighted  work.  It  must  further  appear  that  the  re- 
semblances in  those  parts  or  pages  are  so  close,  so  full,  so 
uniform,  and  so  striking,  as  fairly  to  lead  to  the  conclusion 
that  the  one  is  a  substantial  copy  of  the  other,  or  is  mainly 
borrowed  from  it.* 

572.  It  is  to  be  observed  therefore  that  it  does  not  follow 

that  because  the  same  sources  of  information  are  oj)en  to  all 

-  persons,  and  by  the  exercise  of  their  own  skill, 

sources  of  in-  talent,  or  industry  they  could,  from  all  of  these 
formation.  i  i  i         •     m  i 

sources,  have  produced  a  similar  work,  one  party 

may,  at  second  hand,  without  any  exercise  of  skill,  talent,  or 
industry,  borrow  from  another  all  the  materials  which  have 
been  accumulated  and  combined  by  him.  For  example :  The 
defendant  copies  a  map  of  a  town  from  the  plaintiff's  copy- 
righted map,  the  latter  being  made  by  actual  surveys  of  the 
region.     This  is  an  infringement  of  the  plaintiff's  copyright, 


^  Trusler  v.  Murray,  1  East,  363,  note ;  Emerson  v.  Davies,  3  Story, 
768,  793. 

2  Emerson  v.  Davies,  supra.  ^  Id. 


Chap.  XII.  §  3.]    INFRINGEMENT   OF   PATENTS,   ETC.  281 

though  the  means  used  by  the  plaintiff  for  making  his  map 
were  open  to  all  persons  alike. ^ 

573.  The  next  case  is  that  of  abridgments ;  the  rule  of  law 

in  England  as  to  which  is  said  to  be,  that  a  fair   abridgment, 

when  the  understanding  is  employed  in  retrench- 

,  •  J.  •  Abridgments, 

ing   unnecessary   circumstances,   is    not  a  piracy 

of  the  original  work.     Such  an  abridgment  is  allowable  as 

constituting  a  new  work.^ 

574.  It  is  not  clear  what  the  American  law  upon  this  point 
is.  It  is  certain  however  that  to  justify  an  abridgment  of  a 
copyrighted  work,  the  case  must  be  one  of  a  bona  fide  char- 
acter, and  not  a  mere  evasive  reproduction  of  the  original,  by 
the  omission  of  some  unimportant  parts.  It  is  also  a  matter 
for  consideration  whether  the  new  work  will  prejudice  or 
supersede  the  old,  whether  it  will  be  adapted  to  the  same 
class  of  readers,  and  often  other  things  of  the  same  sort  must 
be  weighed.  In  many  cases,  the  question  may  turn  upon  a 
consideration  not  so  much  of  the  quantity  used  as  of  the 
value  of  the  selected  materials,^  as  has  been  observed  in  an- 
other connection. 

575.  The  true  question  in  cases  of  this  kind  indeed  appears 
to  be  whether  there  has  been  a  legitimate  use  of  the  copy- 
right publication,  in  the  fair  exercise  of  the  mind,  deserving 
the  name  of  a  new  work.  If  there  has  been,  though  it  may 
be  prejudicial  to  the  original  author,  it  is  not  deemed  to  be 
an  invasion  of  his  rights.  If  there  has  not  been,  then  it  is 
treated  as  a  mere  colorable  curtailment  of  the  original  work, 
and  an  evasion  of  the  copyright.'* 

576.  Digests  of  larger  works  fall  under  the  head  of  abridg- 
ments.    Such  publications  are  in  their  nature  original.     The 
compiler  intends  to  make  a  new  use  of  them  not 
intended  by  the  original  author.     But  such  works  ^^^^  '* 

1  See  Gray  v.  Russell,  1  Story,  11,  18. 

2  Copinger,  Copyrights,  101. 

8  Gray  v.  Russell,  1  Story,  19. 

*  2  Story,  Equity,  §  939.    See  also  Story  v.  Holcombe,  4  McLean,  306. 


282  LAW   OF   TORTS.  [Part  II. 

must  be  real  digests,  and  not  mere  colorable  reproductions  of 
the  original,  in  whole  or  in  an  essential  part.  The  work 
bestowed  upon  a  digest  must  be  something  more  than  the 
labor  of  the  pen  and  the  arrangement  of  extracts ;  it  must  be 
mental  labor,  designed  to  produce  a  new  work,  the  object  of 
which  must  clearly  appear  to  be  consistent  with  the  rights  of 
the  author  of  the  original  work.^ 

577.  It  is  not  an  infringement  of  a  copyright,  by  the  Amer- 
ican law,  to  translate,  without  license  of  the  author,  a  copy- 
righted work    into  a  foreign    language;^    unless 
the  author  has  reserved  the  right  of  translation. 

And  this  is  true  in  America,  though  the  author  has  himself 
procured  and  copyrighted  a  translation  of  his  work  into  the 
same  language  with  the  translation  complained  of.  For  ex- 
ample :  The  defendant  translates  into  German  a  book  entitled 
'  Uncle  Tom's  Cabin,'  and  publishes  liis  translation  here ;  the 
plaintiff,  the  author,  having  previously  procured  her  work  to 
be  translated  into  that  language,  and  having  procured  a  copy- 
right upon  her  translation.  The  defendant  has  violated  no 
duty  to  the  plaintiff.^ 

578.  Finally,  the  Revised  Statutes  of  the  United   States 

provide   that   every  person  who   shall    print  or  publish  any 

manuscript  whatever,  without  the  consent  of  the 
Printing  man-  '^  .  ,       .       ,     .  „ 

uscript  with-    author  or  proprietor  nrst  obtanied,  it  such  author 

out  authority.  ^^,  proprietor  is  a  citizen  of  the  United  States,  or 
resident  therein,  shall  be  liable  to  the  author  or  proprietor  for 
all  damages  occasioned  by  such  injury.* 

1  See  the  remarks  of  Lord  Lyndhurst  in  D'Almaine  v.  Boosey, 
1  Younge  &  C.  288,  a  case  of  infringement,  of  a  copyrighted  musical 
composition. 

2  Stowe  V.  Thomas,  2  Wall.  C.  C.  547. 

8  Stowe  V.  Thomas,  supra.     See  Shook  v.  Rankin,  6  Biss.  477. 

*  U.  S.  Rev.  Sts.  §  4967.  See  Perceval  v.  Phipps,  2  Ves.  &  B.  19 ; 
s.  c.  13  Rev.  R.  1,  and  Preface  to  last-named ;  injunction  to  restrain  pub- 
lication of  letters.  r.    .  y^    //  / 


^ 


CHAPTER   XIII. 

VIOLATION  OF  RIGHTS   OF   SUPPORT. 

Statement  of  the  duty.  A  owes  to  B  the  dut}-  (1)  not  to 
remove,  to  B's  damage,  the  lateral  support  of  B's  land,  while 
it  lies  in  its  natural  condition,  or  while,  under  title  by  grant 
or  prescription,  it  lies  in  an  artificial  condition;  (2)  not  to 
remove  negligently,  to  B's  damage,  the  lateral  support  of  B's 
land  with  the  superincumbent  weight  of  buildings  or  mate- 
rials thereon,  adjacent  to  the  boundary;  (3)  not  to  withdraw, 
to  B's  damage,  the  subjacent  support  of  his  premises. 

§  1.   Of  Lateral  Support:  What  must  be  Proved,  etc. 

579.  The  owner  of  land  has  a  right,  against  his  neighbor, 
to  what  is  termed  the  lateral  support  of  the  land.  This  right 
of  lateral  support  is  a  right  of  support  of  the  land  Mature  of  the 
in  its  natural  condition,  or,  in  case  of  grant  or  pre-  right, 
scription,  in  an  artificial  condition ;  and  this  right  of  support 
of  land  in  its  natural  condition  is,  prima  facie,  a  right  analo- 
gous to  the  right  to  make  use  of  a  running  stream  or  of  the 
air.  It  is  not  in  the  nature  of  an  easement,  and  does  not  de- 
pend upon  prescription  or  grant.  ^  But  of  course  a  right  to 
remove  the  support  may  be  acquired  by  grant, ^  though  not 
by  custom  or  prescription,  because  that,  it  is  said,  would  be 
oppressive  and  unreasonable.^ 


1  Bonomi  v.  Backhouse,  EL,  B.  &  E.  622,  646 ;  s.  c.  9  H.  L.  Cas.  503. 
See  Darley  Colliery  Co.  v.  Mitchell,  11  App.  Cas.  127;  Bonaparte  v. 
Wiseman,  89  Md.  12,  23 ;  Shatter  v.  Wilson,  44  Md.  280. 

2  Eowbotham  v.  Wilson,  8  H.  L.  Cas.  348,  and  Maryland  cases  as 
just  cited. 

8  Hilton  V.  Granville,  5  Q.  B.  701;  Wakefield  v.  Buccleuch,  L.  R. 
4  Eq.  613. 


284  LAW   OF   TORTS.  [Part  II. 

580.  This  right  of  support  of  the  hind  surrounding  a  man's 
premises,  unlike  rights  of  property  in  general,  is  not  in- 
jj  ^  fringed,  for  the  purposes  of  a  suit  for  tort,  unless 
necessary.  removing  the  soil  cavise  damage ;  ^  but  damage 
beino-  caused  by  the  removal  of  support,  a  right  of  action 
arises.  Accordingly,  to  prove  the  removal  of  the  lateral  sup- 
port of  the  plaintiff's  land  in  its  natural  condition,  to  the  plain- 
tiff's damage,  will  make  a  prima  facie  case.^  For  example : 
The  defendant,  owner  of  premises  adjoining  the  premises  of 
the  plaintiff,  which  are  located  upon  the  side  of  a  declivity, 
excavates  the  earth  of  his  land  so  closely  to  the  boundary  be- 
tween his  own  and  the  plaintiff's  property  as  to  cause  the  soil 
of  the  plaintiff's  premises,  of  its  own  natural  weight,  to  slide 
away  into  the  pit.  This  is  a  breach  of  duty  to  the  plaintiff, 
for  which  the  defendant  is  liable  in  damages.^ 

581.  The  doctrine  however  goes  no  further  than  to  sustain 
a  right  of  action  for  the  sinking  of  land  in  its  natural  con- 
Land  in  natu-  dition.  The  action  cannot  be  maintained  if  the 
rai  condition,  sinking  be  due  to  a  superincumbent  weight  placed 
upon  the  plaintiff 's  premises,  unless  indeed  some  distinct  right 
has  been  acquired  against  the  adjoining  occupant.  For  ex- 
ample :  The  defendant  digs  a  gravel  pit  in  his  premises  close 
to  the  line  between  his  own  and  the  plaintiff's  land.  Within 
two  feet  of  the  line,  on  the  plaintiff's  land,  stands  a  brick 
house,  erected  ten  years  before,  and  occupied  by  the  plain- 
tiff. By  reason  of  the  defendant's  excavation,  the  premises 
being  located  on  the  side  of  a  hill,  it  becomes  necessary  for 

1  Bonomi  v.  Backhouse,  supra. 

2  Thurston  v.  Hancock,  12  :\Iass.  220 ;  Cases  on  Torts,  325.  See  Gil- 
more  0.  DriscoU,  122  Mass.  199;  Bonaparte  v.  Wiseman,  89  Md.  12; 
Shafter  v.  "Wilson,  4-1  Md.  280.  Some  doubt  was  cast  upon  this  doctrine 
in  a  dictum  in  Radcliff  v.  Brooklyn,  4  Conist.  195,  203,  on  the  ground 
that  it  might  interfere  in  cities  with  the  use  of  property.  But  this  dic- 
tum has  been  disregarded.  Farrand  v.  Marshall,  21  Barb.  409,  414 ; 
McGuire  v.  Grant,  1  Dutch.  35(3,  367.  See  Foley  v.  Wyeth,  2  Allen,  131. 
As  to  giving  notice,  in  cities,  to  the  adjoining  owner  see  Bonaparte  v. 
Wiseman,  89  :\Id.  12;  Shafter  v.  Wilson,  44  Md.  280. 

*  Thurston  c.  Hancock,  supra. 


Chap.  Xlll.  §  1.]     VIOLATION   OF   RIGHTS  OF   SUPPORT.  285 

the  plaintiff  to  vacate  his  house,  and  to  take  it  down,  to  pre- 
vent it  from  sliding  into  the  defendant's  pit.  The  defendant 
is  not  liable,  since  the  plaintiff  had  acquired  no  legal  right  to 
the  support  of  his  house. ^ 

582.  A  right  to  lateral  support  of  buildings  is  in  the  nature 
of  a  right  of  easement,  and  in  England  can  be  acquired  either 

by  srant  or  by  prescription.^     In  this  country  the 

.    f  ,"^.5  1  -11  •        The  right  an 

right  cannot,  it  seems,    be  acquired  by  prescnp-   easement,  in 

tion.3  ]3jjt  even  in  England,  though  a  building  '^^*^^®- 
may  have  stood  upon  the  plaintiff's  premises  for  the  period  of 
prescription,  if  its  walls  were  improperly  constructed,  so  as 
for  this  cause  to  give  way,  and  not  by  reason  of  the  exca- 
vation alone,  the  plaintiff  cannot  recover.*  And  the  same 
would  be  true,  if,  within  the  period  of  prescription,  a  new 
story  were  added  to  the  house,  whereby  the  pressure  was  so 
increased  as  to  cause  the  sinking.^ 

683.  On  the  other  hand,  it  is  to  be  oliserved  that  the  mere 
fact  that  there  were  buildings,  recently  erected,  standing 
upon  the  border  of  the  owner's  land  when  it  sank,  Buildings  on 
will  not  prevent  his  recovering  damages.  If  the  ^^^  ^^.nd. 
soil  sank,  not  on  account  of  the  additional  weight,  but  on  ac- 
count of  the  operations  in  the  adjoining  close  (though  they 
were  carefully  conducted),  and  would  have  sunk  had  there 
been  no  buildings  upon  it,  it  is  held  in  England  that  the  per- 
son sustaining  the  damage  is  entitled  to  redress  to  the  extent 
of  his  loss.^     Clearly  if  the  operation  in  the  adjoining  land 

1  Thurston  v.  Hancock,  supra ;  Caledonian  Ry.  Co.  v.  Sprott,  2  Macq. 
449 ;  Partridge  v.  Scott,  3  M.  &  W.  220. 

2  Dalton  V.  Angus,  6  App.  Cas.  740;  infra,  p.  286. 

8  Gilmore  v.  Driscoll,  122  Mass.  199,  207  ;  Tunstall  v.  Christian,  80 
Va.  1.  Yet  it  has  been  common  in  tliis  country  to  speak  of  the  right  as 
arising  from  grant  or  prescription.  See  Gilmore  v.  Driscoll,  supra,  and 
cases  there  cited. 

4  Richart  v.  Scott,  7  Watts,  460 ;  Dodd  r.  Holme,  1  Ad.  &  E.  493. 

6  See  Murchie  v.  Black,  34  L.  J.  C.  P.  337. 

*  Stroyan  v.  Knowles,  6  H.  &  N.  454.  But  some  courts  hold  that  the 
value  of  the  buildings  could  not  be  recovered,  unless  there  was  negligence ; 
assuming  that  no  right  had  been  acquired  by  grant  (or  by  prescription, 
if  a  right  can  so  be  acquired).    Gilmore  v.  Driscoll,  122  Mass.  199,  206,  207. 


286  LAW  OF  TORTS.  [Part  II. 

was  conducted  with  a  negligent  disregard  to  the  rights  of 
the  plaintiff,  and  the  effect  of  such  negligence  was  the  fall 
of  the  plaintiff's  building,  the  adjoining  occupant  is  liable 
therefor.^ 

584.  But  in  the  absence  of  negligence  in  the  defendant,  if 
the  damage  to  the  plaintiff's  premises  would  have  been  slight 
and  inappreciable  had  there  been  no  superincumbent  weight, 
he  will  not  be  entitled  to  recover.  For  example:  The  de- 
fendant digs  a  well  near  the  plaintiff's  land,  which  causes  the 
same  to  sink,  and  a  building  erected  there  within  twenty 
years  falls.  If  the  building  had  not  been  on  the  plaintiff's 
land,  the  land  would  still  have  sunk,  but  the  damage  to 
the  plaintiff  would  have  been  inappreciable.  This  is  no 
breach  of  duty.^ 

585.  The  result  therefore  is,  (1)  that  the  defendant  is  liable 
for  the  damages  suffered  by  his  neighbor  from  the  withdrawal 

of  the  lateral  support  when  that  act,  of  itself, 
and  without  the  fault  of  the  neighbor,  was  the 
cause  of  the  damage,  including  in  England,  but  not  in  this 
country,  damage  done  to  sound  buildings  built  twenty  years 
or  more  before;  though  the  excavation  was  carefully  made. 
(2)  He  is  liable  for  all  the  damage  suffered  by  withdrawing 
the  support  when  he  was  guilty  of  negligence,  including  in 
the  damages  injuries  to  soundly  built  buildings  however  re- 
cently erected.  (3)  He  is  not  liable,  in  the  absence  of  grant 
or  prescription,  if  the  subsidence  was  caused  by  the  weight 
of  buildings,  or  by  the  defective  condition  of  the  same. 

586.  The  right  of  lateral  support  to  contiguous  buildings 
may  be  acquired  by  grant  or  reservation,  or  in  England,  but 
not  in  this  country,  by  prescription.^     Where  buildings  have 

1  See  Gilraore  v.  Driscoll,  supra;  Charless  v.  Rankin,  22  Mo.  566, 
574;  Schrieve  v.  Stokes,  8  B.  Mon.  4,53,  459;  Dodd  v.  Holme,  1  Ad.  &  E. 
493 ;  Bibley  v.  Carter,  4  II.  &  N.  153. 

2  Smith  V.  Thackerah,  L.  R.  1  C.  P.  564. 

8  Dalton  V.  Angus,  supra;  Lemaitre  y.  Davis,  19  Ch.  D.  281.  Not 
by  prescription,  Tunstall  v.  Christian,  80  Va.  1.  See  also  Gilmore  v. 
DriscoU,  122  Mass.  199,  207. 


Chap.  XIII.  §  1.]     VIOLATION   OP  EIGHTS  OF  SUPPORT.  287 

been  erected  in  contiguity  by  the  same  owner,  and  therefore 

require  mutual  support,  there  is,  either  by  a  pre- 

_  _  I  •  "ij_    iiftt6r»i  sup" 

sumed  grant  or  by  a  presumed  reservation,  a  right  port:  how  the 

to  such  mutual  support  in  favor  of  the  original  acq^r^edf^^ 
owner  on  a  sale  by  him  of  any  of  the  buildings.  As  mutual  sup- 
against  himself,  on  the  other  hand,  there  is  a  pre- 
sumed grant  of  the  right  of  support  in  favor  of  the  purchaser, 
which  rio-ht  takes  effect  at  once.  And  the  reservation  in  tlie 
original  owner,  after  one  sale,  of  the  right  of  support  for  the 
adjoining  building,  will  enable  a  second  purchaser,  on  buy- 
ing this  adjoining  house,  to  claim  against  his  neighbor  the 
same  right  of  support;  since  by  the  purchase  he  acquires  all 
of  his  vendor's  rights.  It  follows  also  that  the  same  mutual 
dependency  continues  after  subsequent  alienations  by  the 
purchasers  from  the  original  owner,  and  this  regardless  of 
the  question  of  time.  For  example:  The  defendant  con- 
structs a  drain  under  his  house  to  connect  with  a  public 
sewer,  and  thereby  weakens  the  support  of  the  wall  separat- 
ing the  defendant's  house  from  the  plaintiff's,  to  the  injury 
of  the  latter's  house.  The  two  houses  originally  belonged  to 
the  same  person,  who  had  demised  them  both  for  ninety- 
nine  years  to  W.  The  latter  mortgages  both  to  B,  who 
assigns  the  mortgage  to  H,  and  H  conveys  (under  a  power) 
one  of  the  houses  to  the  plaintiff  in  July,  and  the  other  to  the 
defendant  in  September  following.  The  defendant's  act  in 
weakening  the  support  of  the  plaintiff's  house  is  a  breach  of 
duty,  and  the  defendant  is  liable.  ^ 

587.  But  the  right  to  such  support  of  buildings  is  not  a 
natural  right ;  and  where  the  adjoining  buildings  were  erected 
by  different  owners  the  right  of  support  can  be  acquired  in 
favor  of  either  of  the  original  owners  (and  their  successors  in 
estate)  only  by  grant  of  the  other  or  reservation,  or  in  Eng- 
land by  prescription.  For  example:  The  defendants  pull 
down  a  house  adjoining  the  plaintiff's,  without  shoring  up 
the  latter,  and  thereby  cause  damage  to  the  plaintiff's  prop- 
erty. The  houses  were  built  about  the  same  time,  but  by 
different  owners  of  the  soil ;  and  there  is  no  title  to  support 

1  Richards  v.  Rose,  9  Ex.  218. 


288  LAW   OF  TORTS.  [Part  IL 

either  by  grant  or  by  prescription,  nor  Las  the  pulling  down 
been  negligently  done.  The  defendants  are  not  liable ;  at 
least  if  the  plaintiff  has  sufficient  notice  of  the  purpose  of  the 
defendants  to  enable  him  to  take  the  proper  precautions 
against  the  damage.^ 

588.  If  there  be  an  intervening  house  or  store  in  the  block, 
between  the  premises  of  the  plaintiff  and  those  of  the  defend- 
ant, the  pulling  down  of  the  hitter's  building  cannot  be  a 
breach  of  duty  to  the  former  in  the  absence  of  some  special 
engagement  between  the  parties,  especially  if  the  plaintiff's 
building  was  already  in  an  unsafe  condition. ^ 

589.  There  appears  to  be  no  obligation  resting  upon  the 
owner  of  a  house  towards  his  neighbor  in  the  adjoining  tene- 
Duty  to  keep  ^ent  to  keep  his  house  in  repair  (further  than  to 
in  repair.  prevent  the  same  from  becoming  a  nuisance  ^)  in 
a  lasting  and  substantial  manner.  The  only  duty  is  deemed 
to  be  to  keep  it  in  such  a  state  that  his  neighbor  may  not  be 
injured  by  its  fall.  The  house  may  therefore  be  in  a  ruinous 
condition,  provided  it  be  shored  up  sufficiently,  or  the  house 
may  be  demolished  altogether,  if  this  can  be  done  without 
injury  to  the  adjoining  house.* 

590.  If  either  of  the  cotenants  of  a  party-wall  ^  should  wish 
to  improve  his  premises  before  the  wall  has  become  ruinous, 
Cotenants  of  ^r  incapable  of  further  answering  the  purposes  for 
party-wall.  which  it  was  built,  he  may  underpin  the  founda- 
tion, sink  it  deeper,  and  increase,  within  the  limits  of  his 
own  land,  the  thickness,  length,  or  height  of  the  wall,  if  he 
can  do  so  without  injury  to  the  building  u^jon  the  adjoining 
close.  And  to  avoid  such  injur}-,  he  may  shore  uj)  and  sup- 
port the  original  wall  for  a  reasonable  time,  in  order  to  exca- 

1  Peyton  v.  London,  9  B.  &  C.  725. 

2  Solomon  v.  Vintners'  Co.,  4  H.  &  N.  585. 

8  Compare  Giles  v.  Walker,  24  Q.  B.  D.  656,  as  to  care  of  premises 
on  •which  thistles  grow. 

*  Chauntler  v.  Robinson,  4  Ex.  163,  170. 

8  For  the  different  kinds  of  party-walls,  see  Watson  v.  Gray,  14  Ch. 
D  192  ;  Weston  v.  Arnold,  L.  R.  8  Ch.  1084. 


Chap.  XIII.  §  1.]    VIOLATION  OF  RIGHTS  OF   SUPPORT.  289 

vate  and  place  a  new  underpinning  beneath  it;  or  he  may 
pull  the  wall  down  for  the  purpose  of  building  a  new  one.* 
To  pull  the  wall  down  without  intending  to  replace  it  would 
be  evidence  of  an  ouster,  for  which  an  action  could  be 
maintained.^ 

591.  It  is  held  that  one  of  the  cotenants  cannot,  without 
consent  of  the  other,  interfere  with  the  wall  unless  he  can  do 
so  without  injury  to  the  adjoining  building.  No  degree  of 
care  or  diligence  in  the  performance  of  the  work  will  relieve 
him  from  liability,  if  injury  be  done  to  the  adjoining  building 
by  making  the  improvements.  For  example :  The  defendant, 
co-owner  with  the  plaintiff  of  a  party-wall  between  their 
premises,  digs  down  his  cellar  about  eighteen  inches,  under- 
pinning the  party-wall,  and  lowers  the  floor  of  his  first  story 
the  same  distance.  In  consequence  of  these  operations,  the 
division  wall  settles  several  inches,  carrying  down  the  plain- 
tiff's floors,  and  cracking  the  front  and  rear  walls  of  his  (the 
plaintiff's)  building.  The  defendant  is  liable  to  the  plaintiff 
for  the  damage  thus  caused,  though  the  said  operation  were 
carried  on  prudently  and  carefully.^ 

592.  It  follows  that,  if  a  party-wall  rest  upon  an  arch,  the 
legs  of  which  stand  within  the  land  of  the  respective  owners, 
neither  can  remove  one  of  the  legs  to  the  detriment  of  his 
neighbor,  without  his  consent.*  On  the  other  hand,  either 
may  run  up  the  wall  to  any  height,  provided  no  damage  be 
thereby  done  to  the  other. ^ 

593.  The  existence  of  a  right  to  fix  a  beam  or  timber  into 

the  wall  of  a  neighbor's  house  depends  upon  the  situation 

of  the  wall.      If  it  stand  wholly  upon  the  land  of 

,1  .     .       ,  1-1  •        Fixing  beams 

the  owner,  it  is  clear  that  no  such  right  can  exist  into  party- 

except  by  grant  or  possibly  by  prescription.     Any  ^^^^^• 

1  Standard  Bank  r.  Stokes,  9  Ch.  D.  68. 

2  Jones  V.  Read,  10  Ir.  R.  C.  L.  315,  Ex.  Ch. 

8  Eno  V.  Del  Vecchio,  G  Duer,  17,  27  ;  s.  c.  4  Duer,  58. 

4  Partridge  v.  Gilbert,  15  N.  Y.  601  ;  Dowling  v.  Hennings,  20  Md. 
179. 

6  Matts  V.  Hawkins,  5  Taunt.  20 ;  Brooks  v.  Curtis,  50  N.  Y.  639,  644. 
See  Dauenhauer  v.  Deviue,  51  Texas,  480. 

19 


290  LAW   OF   TORTS.  [Part  II. 

attempt  by  the  adjoining  owner  to  fix  a  timber  in  the  wall, 
without  consent  given,  would  be  a  trespass,  for  which  an 
action  would  lie;  or  (probably)  it  could  be  treated  as  a 
nuisance  and  abated  accordingly.  And  a  wall  thus  situ- 
ated (the  adjoining  owner  having  acquired  no  right  to 
the  enjoyment  of  it)  may  be  altered  or  removed  at  pleas- 
ure, provided  no  damage  be  thereby  done  to  the  adjoining 
premises. 

594.  If  however  the  wall  be  a  party-wall  owned  in  severalty 
to  the  centre  thereof,  or  in  common,  by  the  adjoining  owners, 
the  case  will  of  course  be  different;  and  each  will  be  entitled 
to  fix  timbers  into  it,  in  a  prudent  manner,  doing  no  damage 
to  the  other  owner.  ^ 

595.  Where  the  wall  is  owned  in  severalty  to  the  centre,  it 
is  clear  that  neither  owner  can  extend  his  timbers  beyond 
the  centre  of  the  wall.  To  pass  the  line  of  division  without 
permission  would  be  as  much  a  trespass  as  to  make  an  entry 
upon  the  soil  without  permission. 

596.  On  the  other  hand,  the  case  would  clearly  be  different 
if  the  wall  were  owned  in  common  by  the  adjoining  proprie- 
tors, since,  as  has  elsewhere  been  observed,  ^  each  of  the  ten- 
ants in  common  is  seised  of  the  whole  common  property. 
And  it  follows  that  such  a  wall  may  also  be  taken  down  by 
either  owner,  for  the  purpose  of  rebuilding,  if  necessary.^ 

§2.  Of  Subjacent  Support:  What  must  be 

Proved,  etc. 

597.  While  ordinarily  a  man's  title  to  land  includes  the 
underlying  soil  to  an  indefinite  extent  towards  the  centre  of 

the  earth,  it  is  settled  law  that  there  may  be 
freehold :  lim-  two  freeholds  in  the  same  body  of  earth  measured 
exc^avfuon^     superficially  and  perpendicularly  down  towards 

the  earth's  centre;  to  wit,  a  freehold  in  the  sur- 
face soil  and  enough  lying  beneath  it  to  sujDport  it,  and  a 

1  See  L.  C.  Torts,  555. 

2  Ante,  p.  231. 

«  Stedman  v.  Smith,  8  El.  &  B.  1. 


Chap.  XIII.  §  2.]    VIOLATION  OF  RIGHTS  OF  SUPPORT.  291 

freehold  in  underlying  strata,  with  a  right  of  access  to  the 
same,  to  work  therein  and  remove  the  contents.  ^ 

598.  This  right  in  regard  to  the  use  of  the  subjacent  strata 
however,  as  is  above  intimated,  is  not  unqualified;  on  the 
contrary,  it  must  be  exercised,  as  in  removing  lateral  support, 
in  such  a  way  as  not  to  damage  the  owner  of  the  surface  free- 
hold. What  then  the  plaintiff  has  to  prove  in  a  case  of  the 
kind  is  that,  to  his  damage,  his  freehold,  in  its  natural  condi- 
tion, has  been  deprived  by  the  defendant  of  its  necessary  sup- 
port by  underground  excavation;  that  being  the  case,  the 
defendant  is  liable,  however  carefully  he  may  have  conducted 
the  work  in  his  own  freehold.  For  example :  The  defendants, 
a  coal  mining  company,  lessees  of  a  third  person  of  coal  mines 
underlying  the  plaintiff's  close,  upon  which  there  are  no 
buildings,  in  the  careful  and  usual  manner  of  working  the 
mine  so  weaken  the  subjacent  support  to  the  plaintiff's  close, 
without  his  consent,  as  to  cause  the  same  to  sink  and  suffer 
injury.     The  defendants  are  liable  for  the  damage  sustained.  ^ 

599.  It  is  laid  down  that  there  is  a  difference  between 
rights  of  support  against  a  subjacent  owner  of  land  and  an 
adjacent  owner  in  regard  to  buildings  upon  the  support  of 
dominant  tenement.  The  right  to  the  support  of  buildings, 
buildings,  as  has  already  been  observed,  depends  upon  grant, 
reservation,  or  (in  England)  prescription.  But  as  against  an 
underlying  freehold,  the  owner  of  the  surface  freehold  is 
entitled,  without  grant  or  reservation,  to  the  support  of  all 
buildings  erected,  however  recently,  before  the  title  of  the 
lower  owner  began  and  possession  was  taken.  For  example: 
The  defendants  are  lessees  and  workers  of  a  mine  under  the 
plaintiff's  freehold.  The  plaintiff,  at  various  times  before 
the  defendants  began  their  works,  and  within  twenty  years 
thereof,  erects  buildings  above  the  mines  on  ground  honey- 
combed by  the  workings  of  another  company  some  years  be- 

1  Humphries  v.  Brogden,  12  Q.  B.  739;   Cases,  335;   Wilkinson  o. 
Prond,  11  M.  &  W.  33. 

2  Humphries  v.  Brogden,  supra.     See  Popplewell  v.  Hodkinson,  Jj.  K- 
4  Ex.  248 ;  Jordeson  v.  Sutton  Gas  Co.,  1S99,  2  Ch.  217,  C.  A. 


292  LAW  OF  TORTS.  [Part  U. 

fore.  The  workings  by  the  defendants  increase  the  defective 
nature  of  the  ground,  and  a  subsidence  of  the  surface  follows ; 
and  from  this  cause  and  the  fact  that  the  plaintiff's  buildings 
were  not  constructed  with  sufficient  solidity,  considering  the 
state  of  the  ground,  damage  results  to  the  plaintiff's  build- 
ings. The  defendants  have  violated  their  duty  to  the  plain- 
tiff' by  not  shoring  up  and  supporting  the  overlying  tenement.^ 

600.  The  support  required,  in  the  absence  of  grant  or  pre- 
scription, appears  however  to  be  merely  a  reasonable  support. 
Whether  the  owner  of  the  upper  tenement  could  require  the 
owner  or  occupant  of  the  lower  to  support  structures  of 
extraordinary  weight,  is  doubtful.  The  true  view  seems  to 
be  that  when  the  owner  of  the  whole  property  severs  it  by  a 
conveyance  either  of  the  surface,  reserving  the  mines,  or  of 
the  mines,  reserving  the  surface,  he  intends,  unless  the  con- 
trary be  made  to  appear  by  plain  words,  that  the  land  shall 
be  supported,  not  merely  in  its  original  condition,  but  in  a 
condition  suitable  to  any  of  the  ordinary  uses  necessary  or 
incidental  to  its  reasonable  enjoyment.^ 

601.  There  is  an  analogous  right  of  support  in  respect  to 
the  upper  stories  of  houses  divided  into  horizontal  tenements. 

It  is  laid  down  that  if  a  building  is  divided  into 
of'house^""^^  floors  or  '  flats, '  separately  owned,  the  owner  of 
vertical  sup-     each  Upper  floor  or  '  fiat '  is  entitled  to  vertical 

support  from  the  lower  part  of  the  building,  and 
to  the  benefit  of  such  lateral  support  as  may  be  of  right 
enjoyed  by  the  building  itself.^  The  same  would  (probably) 
be  true  if  the  stories  of  the  building  were  leased  to  different 
persons. 

1  Richards  v.  Jenkins,  18  Law  T.  N.  s.  437.  Of  course,  if  the  build- 
ings would  have  fallen  without  the  act  of  the  defendants,  they  would  not 
be  liable  for  the  damage  to  them. 

2  Richards  v.  Jenkins,  supra.  In  this  case  however  Mr.  Baron 
Channel  inclined  to  think  that,  if  the  buildings  were  erected  after  the 
defendants  took  possession,  the  period  of  prescription  should  elapse  be- 
fore a  right  to  their  support  could  be  acquired. 

8  Dalton  V.  Angus,  6  App.  Cas.  740,  793 ;  Caledonian  Ry.  Co.  v.  Sprot, 
2  Macq.  449. 


CHAPTER  XIV. 

VIOLATION   OF   WATER  RIGHTS. 

Statement  of  the  duty.  A,  a  riparian  proprietor  or  mill 
ownei",  owes  to  B,  a  riparian  proprietor  below,  on  the  same 
stream,  the  duty  not  to  take,  except  for  domestic  purposes,  or 
for  the  needs  of  a  mill  suited  to  the  size  of  the  stream,  any- 
thing more  than  a  usufruct  of  the  water  thereof. 

§  1.   Or  Usufruct  and  Reasonable  Use  of  Streams  : 
What  must  be  Proved,  etc. 

602.  Riparian  proprietors  have  rights  in  the  water  of  the 
streams   flowing  by  or  through  their  lands,  which  may  be 
thus  stated:  Each  proprietor  is   entitled  to   the 
enjoyment   of   the   water   ex   jure  naturse,  as    a  right:  usu- 
natural  incident  to  the  ownership  of  the  land.^  ixMat:  reason- 
And  the  right  is  like  ordinary  property  rights  in 

this,  that  an  action  may  be  maintained  for  an  infraction 
though  no  actual  damage  has  been  sustained.^  Examples 
from  the  authorities  just  cited  will  presently  appear. 

603.  There  have  been  some  expressions  by  the  courts,  and 
one  or  two  decisions,  to  the  effect  that  the  right  to  the  use 
of  a  running  stream  is  absolute,  like  the  right  to  the  enjoy- 
ment of  land ;  so  that  any  diminution  of  the  water  by  an 
upper  proprietor  is  deemed  actionable  if  he  has  not  a  right 
by  grant,  or  by  prescription,  just  as  an  entry  upon  land 
without  license  is  actionable.^  And  this  view  has  been 
m-ged  in  England.* 

1  Embrey  v.  Owen,  6  Ex.  353,  369,  Parke,  B. 

2  Id. ;  Sampson  v.  Hoddinott,  1  C.  B.  n.  s.  590. 

3  Wheatley  v.  Chrisman,  24  Penn.  St,  298.  See  Crooker  v.  Bragg,  10 
Wend.  260. 

*  See  the  arguments  in  Embrey  v.  Owen,  6  Ex.  353. 


294  LAW  OF  TORTS.  [Part  II. 

604.  The  true  princii^le  however  is  that  each  riparian 
owner  has  at  least  a  right  of  usufruct  ('  usus-fructus ')  in  the 
stream,  subject  to  the  rights,  whatever  they  may  be,  of  the 
riparian  owners  higher  up,  but  that  no  one  can  have  an  abso- 
lute right,  for  any  and  every  purpose,  to  the  whole  volume  of 
water.  That  is,  there  can  be  no  infraction  of  the  right  by 
any  abstraction  of  water  which  does  not  sensibly  affect  its 
volume.  Without  such  an  act,  the  usufruct  is  not  interfered 
with,  and  the  right  of  other  proprietors  has  not  been  in- 
fringed.^ It  is  only  for  an  unreasonable  use  that  an  action 
will  lie.^  To  make  then  a  prima  facie  case,  the  lower  pro- 
prietor has  to  prove  that  the  upper  proprietor  has  taken  an 
amount  of  water  from  the  stream  such  as  has  sensibly 
diminished  the  current ;  presumptively  that  would  be  un- 
reasonable, unless  the  plaintiff  made  his  claim  as  upon  a 
mill-stream. 

605.  What  amounts  to  an  unreasonable  use  of  a  stream 
will  vary  according  to  the  circumstances  of  the  case.  To 
take  a  quantity  of  water  from  a  large  stream  for  agriculture 
or  for  manufacturing  purposes  might  cause  no  sensible  dim- 
inution of  the  volume ;  while  taking  the  same  quantity  from 
a  small  brook  passing  through  many  farms  would  be  of  great 
and  manifest  injury  to  those  below  who  need  it  for  domestic 
or  other  use.  This  would  be  an  unreasonable  use  of  the 
water,  and  an  action  would  lie  therefor.^ 

606.  The  same  would  be  true  if  a  mode  of  enjoyment 
quite  different  from  the  ordinary  one  should  be  adopted, 
sensibly  diminishing  the  volume  of  water  for  any  consider- 
able time.*  For  example :  The  defendant,  an  upper  riparian 
owner,  diverts  much  water  from  the  stream  into  a  reservoir, 

1  Embrey  v.  Owen,  supra;  Mason  i\  Hill,  2  Nev.  &  M.  747;  s.  c. 
5  B.  &  Ad.  1 ;  Miner  v.  Gilmour,  12  Moore,  P.  C.  131 ;  Sampson  v.  Hod- 
dinott,  1  C.  B.  N.  s.  590. 

2  Embrey  v.  Owen,  supra. 

3  Elliot?;.  Fitchburg  R.  Co.,  10  Cush.  191;  Cases,  352;  Miner  v.  GU- 
mour,  12  Moore,  P.  C.  131. 

*  Sampson  v.  Hoddinott,  1  C.  B.  n.  s.  590.    . 


Chap.  XIY.  §  1.]     VIOLATION   OF   WATER   EIGHTS.  295 

and  delays  it  there  to  supply  a  factory ;  this  being  an  extra- 
ordinary use  of  the  stream.  The  act  is  a  breach  of  duty  to 
the  plaintiff,  a  lower  owner.^  Again :  The  defendant  owns 
a  great  tract  of  porous  land  adjacent  to  a  stream,  the  water 
of  which  he  diverts  by  canals,  in  order  to  irrigate  his  land, 
sensibly  diminishing  the  stream.  This  is  a  breach  of  duty 
to  the  plaintiff,  an  owner  lower  down.^ 

607.  These    examples   illustrate   the  rule  that  the   action 
does  not  require  proof  of  special  damage/^     A  stream    may 
be    much  reduced   in   size    without  causing  any  gpeciai  dam- 
actual  loss  to   lower   proprietors ;    but   the  right  age  not  neces- 
being  to  a  full  volume  of  water,  the  diminution  ^^^^' 

of  the  stream  in  any  sensible,  material  degree  by  the  upper 
proprietor  is  an  infraction  of  that  right,  and  accordingly 
creates  liability.  If,  on  the  other  hand,  there  is  no  diminu- 
tion of  the  stream  when  it  reaches  the  plaintiff,  there  is  no 
liability  whatever  the  abstraction.  For  example :  The  de- 
fendants erect  a  dam  across  a  stream  and  take  a  consider- 
able part  of  the  water;  but  the  amount  so  taken  is  made 
good  by  other  water  which  the  defendants  let  into  the  stream, 
and  the  plaintiff  in  fact  sustains  no  damage.  There  is  no 
infraction  of  the  plaintiff's  right,  and  no  cause  of  action.* 

608.  Again,  every  riparian  proprietor  may  use  the  water 
of  the  stream  for  his  natural  domestic  purposes,  including 
the  needs  of  his  animals,  and  this  without  regard  ^^^  ^^  stream 
to  the  effect  it  may  have,  in  case  of  deficienc}',  for  domestic 
upon  those  lower  down.^     That  is,  the  right  is  P^^P°^®^- 


1  Wood  V.  Waud,  3  Ex.  748,  781. 

2  Embrey  v.  Owen,  6  Ex.  3.53,  372. 

3  See  Harvard  Law  Rev.,  Dec.  1899,  p.  299. 

4  Elliot  V.  Fitchburg  R.  Co.,  10  Cush.  191 ;  L.  C.  Torts,  509.  See  also 
Seeley  v.  Brush,  35  Conn.  419  ;  Chatfield  v.  Wilson,  31  Vt.  358;  Gerrish 
V.  New  Market  Manuf.  Co.,  30  N.  H.  478,  483;  Billing  v.  Murray,  6  Ind. 
324. 

5  Miner  ?;.  Gilmour,  12  Moore,  P.  C.  131  ;  Wood  v.  Waud,  supra; 
Evans  !!.  Merriweather,  3  Scam.  492,  495;  Flemings.  Davis,  37  Texas, 
173,  198  ;  Baker  v.  Brown,  55  Texas,  377. 


296  LAW  OF  TORTS.  [Part  IL 

not  limited  to  the  usufruct;  the  whole  may  be  taken  if 
needed. 

609.  And  this  leads  to  the  remark  that  one  criterion  of 
liability  for  abstracting  water  fi'om  streams,  used  for  milling 

purposes,  (probably)  is  whether,  considering  all 
the  circumstances,  the  size  of  the  sti-eam  and  that 
of  the  mill-works,  thei'e  has  been  a  greater  use  of  the  stream, 
in  abstracting  or  detaining  the  water,  than  is  reasonably 
necessary  and  usual  in  similar  establishments  for  carrying 
on  the  mill.  A  mill-owner  is  not  liable  for  obstructing  and 
using  the  water  for  his  mill,  if  it  appear  that  his  dam  is  of 
such  magnitude  only  as  is  adapted  to  the  size  and  capacity 
of  tlie  stream,  and  to  the  quantity  of  water  usually  flowing 
therein,  and  that  his  mode  of  using  the  water  is  not  unusual 
or  unreasonable,  according  to  the  general  custom  of  the 
country  in  dams  upon  similar  streams  ;  and  this,  whatever 
may  be  the  effect  upon  the  owners  of  land  below.^ 

610.  The  water  of  a  stream  running  wholly  within  a  man's 
land  may  be  diverted,  if  it  be  returned  to  its  natural  channel 
stream whollv  b^^*^'"^  reaching  the  lower  proprietor  ;2  and  this 
within  one's     could  perhaps  be  done  where  the  water  runs  be- 
tween the  lands  of  riparian  occupants,  so  far  as 

the  rights  of  parties  lower  down  are  concerned.  The  only 
person  entitled  to  complain  of  such  an  act  would  be  the 
opposite  proprietor. 

611.  The  foregoing  remarks  suppose  that  there  exists  no 
right  by  prescription  or  grant  to  the  use  of  the  stream  by 
Prescription  either  the  upper  or  lower  proprietor.  The  rights 
or  grant.  ^j-k^i  burdens  of  the  parties  may  be  greatly  varied 
by  grant  or  by  prescription. 

1  Springfield  v.  Harris,  4  Allen,  494  ;  s.  c.  L.  C.  Torts,  506.  See 
Davis  v.  Getchell,  50  Maine,  002;  Merrifield  v.  Worcester,  110  Mass. 
210  ;  Hayes  v.  Waldron,  44  N.  H.  580  ;  Pool  v.  Lewis,  41  Ga.  162;  Timm 
t'.  Bear,  39  Wis.  254;  Clinton  v.  Myers,  46  N.  Y.  511.  The  statutes 
with  regard  to  mill-streams  should  however  be  noticed. 

2  Miner  v.  Gilmour,  supra;  Tolle  v.  Correth,  31  Texas,  362. 


Chap.  XIV.  §  2.]     VIOLATION   OF   WATER   RIGHTS.  297 

612.  With  regard  to  surface  water  running  in  no  defined 
channel,  the  rule  of  law  is  that  every  occupant  of  land  has 
the  right  to  appropriate  such  water,  though  the  Appropriating 
result  be  to  prevent  the  flow  of  the  same  into  a  general  sur- 
neighboring  stream,  or  upon  the  land  of  an  adjoin-  ^^^  ^*  ^^' 
ing  occupant.^  Nor  can  there  be  any  prescriptive  right  to 
such  water.  For  example :  The  defendant,  for  agricultural 
and  other  useful  pmposes,  digs  a  drain  in  his  land,  tlie  effect 
of  which  is  to  prevent  the  ordinary  rainfall,  and  the  waters  of 
a  spring  arising  upon  his  land,  and  flowing  in  no  defined 
channel,  from  reaching  a  brook,  upon  which  the  plaintiff  has 
for  fifty  years  had  a  mill.  The  defendant  is  not  liable  for  the 
diversion,  however  serious  the  inconvenience  to  the  plaintiff.^ 

613.  In  the  Pacific  States  the  law  is  peculiar.     There  he 
who  first  duly  appropriates  all  the  waters  of  a  stream  running 
in  the  public  lands  becomes  entitled  to  the  same  pirgt  appro- 
to  the  exclusion  of  all  others.^     But  if  only  part  priation. 

is  appropriated,  another  may  appropriate  the  rest ;  or  if  all  is 
appropriated  only  on  certain  days,  others  may  appropriate 
it  on  other  days.* 

§  2.   Of  Sub-sueface  Water. 

614.  In  regard  to  underground  streams,  if  their  course  is 
defined  and  known,  as  is  the  case  with  streams  which  sink 
under  ground,  pursue  for  a  short  distance  a  sub-  underground 
terraneous  course,  and  then   emerge   again,  the  streams :  mere 
owner  of  the  land  lower  down  has  the  same  rights  ^^^'^° 

as  he  would  have  if  the  stream  flowed  entirely  above  ground.^ 
But,  if  the  underground  water  be  merely  percolation,  there 

1  Broadbent  v.  Ramsbotham,  II  Ex.602;  Luther  v.  Winnisimmet  Co., 
9  Ciish.  171;  Gannon  v.  Hargadou,  10  Allen,  106  ;  Curtis  v.  Ayrault,  47 
N.  Y.  73,  78  ;  Livingston  v.  McDonald,  21  Iowa,  160,  166. 

'■'  Broadbent  v.  Ramsbotham,  supra;  Rawstron  i\  Taylor,  11  Ex.  3G9. 

3  Smith  V.  O'Hara,  43  Cal.  371. 

*  Id.  As  to  what  is  a  due  appropriation,  see  Weaver  v.  Eureka  Lake 
Co.,  1.5  Cal.  271;  IVIcKinney  v.  Smith,  21  Cal.  374. 

6  Dickinson  v.  Grand  June.  Canal  Co.,  7  Ex.  282. 


298  LAW  OF  TORTS.  [Part  II. 

can  be  no  breach  of  duty  in  cutting  it  off  from  a  lower  or 
adjoining  land-owner.  And  there  can  be  no  prescriptive 
right  to  the  water.  For  example :  The  defendant,  a  land- 
owner adjoining  the  plaintiff,  digs  on  his  own  gromid  an 
extensive  well  for  the  purpose  of  supplying  water  to  the 
inhabitants  of  a  district,  many  of  whom  have  no  t'itle  as 
land-owners  to  the  use  of  the  water.  The  plaintiff  has  previ- 
ously for  more  than  sixty  years  enjoyed  the  use  of  a  stream 
(for  milling  purposes)  which  was  chiefly  supplied  by  perco- 
lating underground  water,  produced  by  rainfall ;  which  water 
now,  after  the  digging  of  the  well,  is  cut  off  and  fails  to  reach 
the  stream.  The  defendant's  act  is  no  breach  of  duty  to 
the  plaintiff.^ 

1  Chasemore  v.  Richards,  7  H.  L.  Cas.  349,  overruling  Balston  v. 
Beusted,  1  Camp.  463.  No  right  to  such  percolating  water  can  arise  by 
grant  or  by  prescription  apart  from  the  right  to  the  land  itself.  Id. 
Further  see  Chase  v.  Silverstone,  62  Maine,  175;  Wilson  v.  New  Bed- 
ford, 108  Mass.  261  ;  Frazier  v.  Brown,  12  Ohio  St.  294 ;  Cases,  360 ; 
Hanson  v.  McCue,  42  Cal.  303.  In  New  Hampshire  the  right  to  cut  off 
percolating  water  depends,  as  by  the  Roman  law,  upon  the  reasonable  use 
of  the  soil.  Bassett  v.  Salisbury  Manuf.  Co.,  43  N.  H.  569 ;  Swett  v. 
Cutts,  50  N.  H.  439 ;  Cases,  376.  See  ante,  p.  23,  note.  As  to  j>olluting 
streams,  see  post,  p.  304. 

On  the  whole  subject  of  the  foregoing  chapter  see  Gould  on  Waters, 
a  valuable  work. 


CHAPTER  XV. 

NUISANCE. 

Statement  of  the  duty.  A  owes  to  B  the  duty  (1)  not  to 
obstruct  or  imj)air  the  use  of  the  public  ways  or  waters  in 
such  a  manner  as  to  cause  damage  to  B :  (2)  not,  except  in 
the  ordinary,  natural  use  of  his  own,  to  flood  the  land  of  B 
with  water  collected  upon  his  own  land,  or  by  changing  the 
course  of  currents ;  ^  (3)  not  to  cause  or  suffer  the  existence 
upon  his  own  premises  of  anything  not  naturally  there  which 
while  there  causes  damage  to  B;  (4)  not  to  use  his  own 
premises  so  as  to  endanger  the  life  or  impair  the  health  of  B, 
or  to  disturb  B's  comfort,  to  his  damage,  in  the  use  of 
his  (A's)  premises. 

Public  nuisances  are  indictable  nuisances,  being  committed 
(1)  in  the  public  ways  or  waters,  or  (2)  on  private  premises 
to  the  prejudice  of  the  general  public. ^ 

Private  nuisances  are  non-indictable  nuisances,  being 
committed  on  private  premises  to  the  prejudice  of  one  person, 
or  but  a  few  persons,  of  the  neighborhood. 

A  public  nuisance  may  be  also  a  private  nuisance. 

§  1.    Of  what  constitutes  a  Nuisance. 

615.     It  appears  to  be  of  the  essence  of  a  nuisance  that  there 
should  be  some  duration  of   mischief;   a  wrong     Nature  of 
producing  damage  instantaneously,  as  in  the  case     ^^®  wrong. 

^  But  see  infra,  p.  303. 

2  '  If  a  person  erects  on  his  own  land  anytliing  whatever  calculated  to 
interfere  with  the  convenient  use  of  the  road,  he  commits  a  nuisance.* 
Stephen,  J.,  in  Brown  v.  Eastern  Ry.  Co.,  23  Q.  B.  Div.  391,  392,  case 
of  a  heap  of  dirt  by  the  roadside.  Negligence  is  not  necessary.  Hauck 
V.  Tide  Water  Co.,  153  Penn.  St.  366;  Cases,  385;  Rapier  v.  London 
Tramways  Co.,  1893,  2  Ch.  588,  600. 


300  LAW   OF   TORTS.  [Part  II. 

of  an  explosion/  could  hardly  be  a  nuisance.  And  then 
further  to  determine  what  constitutes  a  nuisance,  so  as  to 
render  the  author  of  it  liable  to  a  neighbor  in  damages,  a 
variety  of  other  considerations  must  often  be  taken  into 
account;  especially  where  the  act  in  question  has  been  com- 
mitted in  a  populous  neighborhood,  in  the  prosecution  of  a 
manufacturing  business.  And  even  if  the  business  itself  be 
unlawful,  it  does  not  follow  that  a  private  individual  can  call 
for  redress  by  way  of  a  civil  action  for  damages.  Whether 
he  can  do  so  or  not  will  depend  upon  the  question  whether 
he  has  sustained  special  damage,  by  reason  of  the  thing 
alleged  to  be  a  nuisance. 

616.  Even  supposing  the  nuisance  not  to  be  a  public  one, 
that  is,  not  to  affect  seriously  the  rights  of  the  public  in  gen- 
eral, much  difficulty  arises  in  determining  when 

Keasonable        ^i       i       •  •    ^  •    i  i       • 

manner  of        ^1^6  busniess  carried  on  upon  neighboring  prem- 

conducting       jggg    either  in  itself  or  in  the  manner  of  conduct- 
business:  .      '     .  .  1-1 
*  convenient      ing  it,  is  SO  detrimental  as  to  subject  the  proprietor 

P  ace.  ^^.  manager  to  liability  in  damages.       And   this 

difficulty  was  until  recently  increased  by  certain  inexact  terms 
used  in  the  old  authorities.  It  was  said  that  if  a  business 
was  carried  on  in  a  '  reasonable  manner, '  an  action  for  damages 
could  not  be  maintained,  though  annoyance  resulted;  and 
the  term  '  reasonable  manner '  was  explained  as  meaning  that 
the  business  was  to  be  carried  on  merely  in  a  convenient  place. 
That  is,  a  trade  was  not  to  be  treated  as  a  nuisance  if  carried 
on  in  the  ordinary  manner  in  a  convenient  locality.  The 
result  was  to  bestow  upon  a  manufacturer  the  right  to  ruin 
his  neighbor's  property,  provided  only  his  business  was  care- 
fully conducted  in  a  locality  convenient  for  its  management. ^ 

617.  Recent  authorities  have  however  changed  all  this,  by 
declaring  that,  when  no  prescriptive  right  is  proved,  the  true 
meaning  of  the  term  '  convenient, '  used  by  the  older  authori- 

^  An  explosion  might  be  a  consequence  of  a  nuisance  however.  See 
Kinney  v.  Gerdes,  116  Ala.  310;  Rudder  v.  Gerdes,  id.  332.  These  cases 
review  the  authorities  as  to  keeping  gunpowder  in  large  quantities. 

2  Comyns's  Digest,  Action  upon  the  Case  for  a  Nuisance,  C  ;  Hole  v. 
Barlow,  4  C.  B.  n.  s.  334. 


Chap.  XV.  §  1.]  NUISANCE.  301 

ties,  lies  in  the  consideration  whether  the  plaintiff  has  suf- 
fered a  visible  detriment  in  his  property  by  reason  of  the 
management  or  nature  of  the  defendant's  business ;  if  he  has, 
the  defendant  is  liable.  Convenience  is  a  question  for  the 
neighbor  and  not  for  the  manufacturer;  and  visible  damage 
to  the  neighbor's  property  shows  that  the  business  is  carried 
on  in  an  inconvenient  place. ^ 

618.  The  plaintiff  accordingly  makes  a  presumptive  case 
against  the  defendant  by  showing  that  the  defendant  is  carry- 
ing on  a  business  in  the  neighborhood  of  the  plaintiff,  which 
has  actually  and  visibly  done  harm  to  the  plaintiff's  property 
there.  For  example:  The  defendants  are  proprietors  of 
copper-smelting  works  in  the  plaintiff's  neighborhood,  where 
many  other  manufacturing  works  are  carried  on.  The  vapors 
from  the  defendant's  works,  when  in  operation,  are  visibly 
injurious  to  the  trees  on  the  plaintiff's  estate ;  the  defend- 
ants having  no  prescriptive  right  to  carry  on  their  business 
as  and  where  they  do.  The  defendants  are  guilty  of  a  breach 
of  duty  to  the  plaintiff,  for  which  they  are  liable  in  damages ; 
though,  for  the  purposes  of  manufacturing,  the  business  is 
carried  on  at  a  convenient  place. ^ 

619.  But  a  person  living  in  a  populous  neighborhood  must 
suffer  some  annoyance ;  that  is  part  of  the  price  he  pays  for 
the  privileges  which  he  may  enjoy  there.     He  can-  gnght  detri- 
not  bring  an  action  for  every  slight  detriment  to  ment. 

his  property  which  a  business  in  the  vicinity  may  produce. 
Or,  to  state  the  case  in  the  language  of  judicial  authority,  if 
a  man  live  in  a  town,  he  must  submit  to  the  consequences  of 
those  operations  of  trade  which  may  be  carried  on  in  his 
immediate  locality,  which  are  actually  necessary  for  trade  and 
commerce,  and  also  for  the  enjoyment  of  property,  and  for 
the  benefit  of  the  inhabitants  of  the  town  and  of  the  public 

1  Bamford  v.  Turnley,  3  Best  &  S.  62,  66;  Cavey  v.  Ledbitter,  13 
C.  B.  N.  s.  470 ;  St.  Helen's  Smeltuig  Co.  v.  Tipping,  11  H.  L.  Cas.  642; 
Cases,  388. 

'  St.  Helen's  Smelting  Co.  v.  Tipping,  supra.  See  also  Broadbent  u. 
Imperial  Gas  Co.,  7  De  G.  M.  &  G.  436 ;  s.  c  7  H.  L.  Cas.  600. 


302  LAW   OF  TORTS.  [Part  II 

at  large.  If  a  man  live  in  a  street  where  there  are  numer- 
ous shops,  and  a  shop  be  opened  next  door  to  him,  which  is 
carried  on  in  a  fair  and  reasonable  way,  he  has  no  ground  of 
complaint  because  to  himself  individually  there  may  arise 
much  discomfort  from  the  trade  carried  on  in  that  shop. 
But  when  an  occupation  is  carried  on  by  one  person  in  the 
neighborhood  of  another,  and  the  result  of  that  occupation  is 
a  visible  injury  to  property,  the  case  is  different.^ 

620.  It  should  be  observed  in  this  connection  that  the 
plaintiff  is  not  precluded  from  recovering  by  reason  of  the 
Notice  of  f^*^^  ^^^^  ^^®  ^^^  notice  of  the  existence  of  the  nui- 
works.  sance  when  he  located  himself  near  it.  If  the 
thing  complained  of  be  unlawful  —  if  there  be  no  prescriptive 
right  to  doit  — the  doer  cannot  set  up  notice  to  escape  lia- 
bility. ^     For  example:    The  defendant  is  a  tallow-chandler, 

■  carrying  on  his  business  in  a  certain  messuage,  in  such  a 
manner  as  to  convey  and  diffuse  noxious  vapors  and  smells 
over  premises  adjoining,  which  the  plaintiff  takes  possession 
of  while  the  defendant  is  carrying  on  his  business.  The 
defendant  is  liable.^ 

621.  Subject  to  any  annoyance  which  may  result  from  the 
right  which  every  landowner  has  to  the  ordinary  and  natural 
Turning  ^^e  of  his  premises,  it  is  held  by  high  authorities 
water  back,  that  no  one  may  turn  water  from  his  own  land  back 
upon  that  of  his  neighbor  without  having  acquired  a  right  so 
to  do  by  statute  or  by  grant  or  prescription ;  ^  and  this  though 
the  water  thrown  back  comes  of  natural  rainfall.^     Such  an 

1  Lord  Westbury  in  St.  Helen's  Smelting  Co.  v.  Tipping. 

2  Bliss  V.  Hall,  4  Bing.  N.  C.  183  ;  Bamford  v.  Turnley,  3  Best  &  S. 
62,  70,  73;  L.  C.  Torts,  467. 

8  Bliss  V.  Hall,  supra. 

*  Hurdman  v.  Xortheastern  Ry.  Co.,  3  C.  P.  Div.  168 ;  Whalley  v. 
Lancashire  Ry.  Co.,  13  Q.  B.  Div.  131 ;  Tootle  v.  Clifton,  22  Ohio  St. 
247.  See  also  Martin  v.  Riddle,  26  Penn.  St.  415;  Kauffnian  v.  Giesemer, 
id.  407  ;  Ogburn  v.  Connor,  46  Cal.  346  ;  Laumer  v.  Francis,  23  Mo.  181. 
Contra,  by  other  authorities.     See  infra. 

^  Hurdman  v.  Northeastern  Ry.  Co.,  supra. 


Chap.  XV.  §  1.]  NUISANCE.  303 

act  might  by  these  authorities  be  treated  as  a  trespass,  and 
therefore  should  be  redressible  though  no  damage  had  been 
sustained;  for  otherwise  a  right  to  send  the  water  there 
might  eventually  be  acquired  by  prescription,  to  the  substan- 
tial confiscation  of  the  particular  piece  of  land.  For  exam- 
ple: The  defendant  erects  an  embankment  upon  his  land, 
whereby  the  surface-water  accumulating  upon  the  plaintiff's 
land  is  prevented  from  flowing  off  in  its  natural  courses,  and 
caused  to  flow  in  a  different  direction  over  his  land.  This  is 
a  breach  of  duty  for  which  the  defendant  is  liable  to  the  plain- 
tiff, though  the  latter  suffer  no  damage  thereby.^ 

622.  More  clearly  then  will  the  flooding  of  a  neighbor's 
land  create  liability  when  damage  is  caused ;  indeed,  liability 
is  held  to  be  created  not  only  where  the  water  is  thrown  back 
by  means  of  a  dam,  but  also  where  a  stream  or  a  ditch  is 
caused  to  overflow  by  turning  into  it  water  not  naturally  or 
entirely  tributary  to  it.  For  example :  The  defendant,  in  the 
course  of  reclaiming  and  improving  his  land,  collects  the 
surface  water  of  his  premises  into  a  ditch,  and  thereby  greatly 
increases  the  quantity,  or  changes  the  manner,  of  the  flow 
upon  the  lower  lands  of  the  plaintiff,  to  his  damage.  The 
defendant  is  liable.^ 

623.  So  far  as  the  doctrine  of  the  two  preceding  paragraphs 
applies  to  surface  water,  or  water  flowing  through  drains  or 
ditches,  and  not  in  natural  streams,  it  is  rejected 

by  some  authorities.  By  these  it  is  held  that  water :  drains 
a  coterminous  proprietor  may  change  the  surface  itches, 

of  his  land  by  raising  or  filling  it  to  a  higher  grade,  by 
the  construction  of  dykes  or  other  improvements,  though  the 
effect  be  to  bring  an  accumulation  of  water  on  adjacent  land, 

1  Tootle  V.  Clifton,  22  Ohio  St.  247.  This,  it  should  be  observed,  is 
not  the  case  of  bringing  water,  as  by  means  of  a  reservoir,  upon  one's 
land  (Rylands  v.  Fletcher,  L.  R.  3  H.  L.  Cas.  330  ;  post,  chapter  xvii.) ; 
for  there  the  purpose  is  not  to  throw  the  water  back  but  to  hold  it. 
Escape  in  such  a  case  might  not  be  a  trespass. 

2  Livingston  v.  McDonald,  21  Towa,  160.  A  purchaser  would  be  liable 
for  continuing  the  nuisance,  at  least  after  notice. 


304  LAW  OF  TORTS.  [Part  U. 

and  to  prevent  it  from  passing  off.  The  right  to  the  free  use 
of  one's  land  above,  upon,  or  beneath  the  surface  cannot,  it 
is  deemed,  be  prevented  by  considerations  of  damage  to  otliers 
caused  in  that  way,  so  long  as  the  operations  are  carried  on 
properly  for  the  end  in  view.^ 

624.  If  the  water  of  a  stream  be  polluted,  or  otherwise  ren- 
dered useless,  or  perhaps  materially  less  useful  than  it  was 
PoUutinff  before,  whether  it  be  surface  or  sub-surface  water, 
water.  and  damage  ensue  to  another  riparian  owner,  he 
can  maintain  an  action  therefor,  unless  a  right  to  do  the  thing 
has  been  acquired  by  statute  or  by  grant  or  prescription. ^ 
In  the  case  of  statutory  authority  to  pollute  the  waters  of  a 
stream  however  this  doctrine  is  to  be  taken  with  qualifica- 
tion. It  has  been  laid  down  in  regard  to  such  cases  that  a 
city  is  not  liable  for  polluting  by  sewage  the  water  of  a  stream 
which  it  has  a  right  to  use  for  that  purpose,  so  far  as  the 
effect  is  the  necessary  result  of  the  system  of  drainage  adopted 
by  the  city;  but  it  is  otherwise  if  the  pollution  is  attributable 
to  the  negligence  of  the  city  in  managing  the  system  or  in 
the  construction  of  sewers,^  or  in  any  other  particular.  The 
right,  whether  statutory  or  otherwise,  must  be  exercised  in  a 
reasonable  and  proper  way.^ 

625.  For  milling  and  other  purposes,  for  which  some  large 
or  special  use  of  the  water  of  a  stream  is  required,  statutory 

rights  are  often  granted,  under  various  restrictions, 
to  flood  the  lands  lying  along  the  mill-streams,  or 

1  Gannon  v.  Hargadon,  10  Allen,  106  ;  Dickinson  v.  Worcester,  7  Allen, 
19  ;  Brown  v.  Collins,  53  N.  H.  443. 

2  Wheatley  v.  Chrisman,  24  Penn.  St.  298;  O'Riley  v.  McCheeney, 
3  Lans.  278;  Merrifield  v.  Worcester,  110  Mass.  316.  See  Clowes  k 
Staffordshire  Waterworks  Co.,  L.  R.  8  Ch.  125;  Goldsmid  v.  Tunbridge 
Wells  Com'rs,  L.  R.  1  Eq.  161,  affirmed,  L.  R.  1  Ch.  349. 

*  Merrifield  v.  Worcester,  supra.  See  Blyth  v.  Birmingham  Water- 
works Co.,  11  Ex.  781,  to  the  same  effect  in  regard  to  the  escape  of 
water. 

*  Baxendale  v.  McMurray,  L.  R.  2  Ch.  790.  The  fact  that  certain 
works,  improperly  constructed,  in  the  public  highway  are  satisfactory  to 
the  municipal  authorities  will  not  prevent  them  from  being  a  nuisance. 
Osgood  V.  Lynn  R.  Co.,  130  Mass.  492. 


Chap.  XV.  §  1.]  NUISANCE.  305 

to  foul  the  water;  for  the  nature  of  which  rights  reference 
should  be  made  to  the  statutes  and  the  judicial  interpreta- 
tions of  them. 

626.  With  regard  to  actions  for  nuisances  to  personal  enjoy- 
ment, it  appears  to  be  quite  clear  that  for  such  smells  or 
vapors  proceeding  from  a  neighbor's  premises  as 

are  merely  disagreeable,  at  least  such  smells  or  fort :  smells 
vapors  as  are  the  necessary  effect  of  a  business  *°'i^^P°'^s. 
properly  conducted  there,  no  action  is  maintainable.  ^  The 
noxious  gases  must  produce  some  important  sensible  effect 
upon  physical  comfort.  A  person  is  indeed  sometimes  said 
to  be  entitled  to  an  unpolluted  and  untainted  stream  of  air 
for  the  necessary  supply  and  reasonable  use  of  himself  and 
family ;  but  by  the  terms  '  untainted  '  and  '  unpolluted  '  are 
meant,  not  necessarily  air  as  fresh,  free,  and  pure  as  existed 
before  the  business  in  question  was  begun,  but  air  not  ren- 
dered to  an  important  degree  less  compatible,  or  certainly  not 
incompatible,  with  the  physical  comfort  of  existence.  ^ 

627.  The  criterion  therefore  of  liability  for  a  supposed  (pri- 
vate ^)  nuisance,  affecting  the  bodily  comfort  of  the  plaintiff, 
is  whether  the  inconvenience  should  be  considered  as  more 
than  fanciful,  —  more  than  one  to  mere  delicacy  or  fastidious- 
ness, —  as  an  inconvenience  materially  interfering  with  the 
ordinary  physical  comfort  of  human  existence,  not  merely 
according  to  elegant  or  dainty  modes  and  habits  of  living, 
but  according  to  plain  and  simple  modes  of  life.*  On  the 
other  hand,  it  is  not  necessary  that  health  should  be  impaired.^ 

1  See  St.  Helen's  Smelting  Co.  v.  Tipping,  11  H.  L.  Cas.  642. 

2  Walter  v.  Selfe,  4  De  G.  &  S.  315. 

^  It  is  doubtful  if  the  right  of  action  for  injury  by  a  public  nuisance 
would  stand  on  different  ground;  but  the  court  in  Walter  v.  Selfe  is 
careful  to  say  that  a  private  nuisance  is  there  spoken  of. 

^  Walter  v.  Selfe,  supra.  See  also  Rapier  v.  London  Tramways  Co., 
189.3,2  Ch.  588,  600;  Crump  v.  Lambert,  L.  R.  3  Eq.  409;  affirmed 
17  L.  T.  N.  s.  133  ;  Columbus  Gas  Co.  v.  Freeland,  12  Ohio  St.  392. 

5  Rapier  v.  London  Tramways  Co.,  1893,  2  Ch.  588,  600;  Walter  v. 
Selfe,  supra.  '  The  test  is  whether  the  smell  is  so  bad  and  continuous 
as  to  seriously  interfere  with  comfort  and  enjoyment.'  Lindley,  L.  J., 
in  the  first  case. 

20 


306  LAW  OF  TORTS.  [Pabt  IL 

For  example :  The  defendant  erects  upon  his  premises,  adjoin- 
ing the  premises  of  the  plaintiff,  a  kiln  for  the  manufacture 
of  bricks,  and  in  the  process  of  the  manufacture  the  smoke 
and  vapors  and  floating  substances  from  the  kiln  are  con- 
stantly directed  to  and  within  the  plaintiff's  house,  so  as  to 
affect  materially  the  comfort  of  himself  and  family  as  persons 
of  ordinary  habits  of  life.  This  is  a  breach  of  duty  to  the 
plaintiff,  though  it  appear  that  the  health  of  his  family  has 
actually  been  better  since  the  erection  of  the  kiln  than  before.^ 

628.  It  matters  not  what  it  is  that  produces  the  discomfort: 
smoke  alone  may  be  sufficient;  so  of  noxious  vapor  alone; 
so  of  offensive  smells  alone.  Whatever  produces  a  material 
discomfort  to  human  life  in  the  neighborhood  is  a  nuisance, 
for  which  damages  are  recoverable. ^  But  the  provisions  of 
statute  in  regard  to  such  annoyances,  arising  from  the  carry- 
ing on  of  a  lawful  business,  should  always  be  examined.^ 

629.  Liability  for  disturbing  one's  peace  of  mind  appears 
to  be  moi*e  restricted,  and  to  be  confined  to  acts  which  would 
Disturbing  produce  a  like  effect  upon  all  persons,  such  as  acts 
peace  of  mind,  yf  indecency.  If  the  disturbance,  while  affecting 
the  plaintiff's  mind  disagreeably  and  seriously,  would  not 
so  affect  the  mind  of  others  generally,  there  is  no  ground  of 
action.  This  is  deemed  to  be  the  case  of  mere  noise  on  Sun- 
day or  daring  religious  worship.  For  example :  The  defend- 
ant disturbs  the  plaintiff  during  divine  service  in  church,  by 
making  loud  noises  in  singing,  reading,  and  talking.  This  is 
no  breach  of  duty  to  the  plaintiff.* 

§  2.    Of  Public  Nuisances:  What  must  be  Proved, 

ETC. 

630.  Thus  far  of  private  nuisances.  In  regard  to  public 
nuisances,  it  is  to  be  observed  that  such  become  private  nui- 

1  Walter  v.  Selfe,  supra.  ^  Crump  v.  Lambert,  supra. 

*  In  regard  to  smoke,  under  statutory  provisions,  see  Cooper  v.  Wool- 
ley,  L.  R.  2  Ex.  88;  Smith  v.  Midland  Ry.  Co.,  37  L.  T.  n.  s.  224. 

*  Owen  V.  Henman,  1  Watts  &  S.  548.  See  also  First  Baptist  Church 
V.  Utica  R.  Co.,  5  Barb.  79;  Sparhawk  v.  Union  Ry.  Co.,  54  Penn.  St. 
401,  cases  of  public  nuisance. 


Chap.  XV.  §  2.]  NUISANCE.  307 

sances  as  well,  by  inflicting  upon  a  particular  individual  any- 
special  or  particular  damage;  proof  of  such  dam-  Public  may  be 

age   is    enough.     For  example:    The  defendant,   PJivatenui- 
o  &  ir  '    sance :  special 

without  authority,  moors  a  barge  across  a  public  damage, 
navigable   stream,  and   harmfully   obstructs    the   navigation 
thereof  to  the  plaintiff,  who  at  the  time  is  floating  a  barge 
down  the  stream.     This  is  a  breach  of  duty  to  the  plaintiff, 
for  which  the  defendant  is  liable  in  damages.  ^ 

631.  If  however  the  discomfort,  having  the  like  effect 
upon  all  persons,  produces  no  particular,  actual  damage  to 
any  individual,  no  individual  can  maintain  an  action  for 
damages  by  reason  of  it.  In  other  words,  it  is  necessary  to 
the  maintenance  of  an  action  for  damages  for  a  public  nui- 
sance (as  well  as  in  the  case  of  a  private  nuisance)  that  the 
plaintiff  should  have  suffered  actual,  specific  damage  thereby,^ 
and,  by  some  authorities,  damage  distinct  in  kind.^ 

632.  It  matters  not  that  the  special  damage  sustained  by 
the  plaintiff  is  common  to  a  large  number  of  individuals,  or 
to  the  whole  neighborhood ;  enough  if  there  is  actual  damage 
to  his  property,  or  injury  to  his  health,  or  to  his  physical 
comfort  (as  explained  in  considering  private  nuisances).  The 
injury  inflicted  upon  private  interests  is  not  merged  in  the 
wrong  done  to  the  general  public.  For  example:  The  de- 
fendants carry  on  a  large  business  as  auctioneers  near  a  coffee- 
house kept  by  the  plaintiff  in  a  narrow  street  in  London. 
From  the  rear  of  the  defendant's  building,  which  there  adjoins 
the  plaintiff's  house,  the  defendants  are  constantly  loading 
and  unloading  goods  into  and  from  vans,  and  stalling  their 
horses.  This  intercepts  the  light  of  the  coffee-house  so  as  to 
require  the  plaintiff  to  burn  gas  most  of  the  daytime,  obstructs 
the  entrance  to  the  door,  and  renders  the  plaintiff's  premises 
uncomfortable  from  stench.  The  nuisance  is  a  public  one, 
but  the  plaintiff  suffers  a  special  and  particular  damage  from 

1  Rose  V.  Miles,  4  Maule  &  S.  101 ;  s.  c.  L.  C.  Torts,  460.  See  also 
Booth  V.  Ratte,  lo  App.  Gas.  188. 

2  Wesson  v.  Washburn  Iron  Co.,  13  Allen,  9.o;  Milhau  v.  Sharp, 
27  N.  Y.  612  ;  Grifrsby  r.  Clear  Lake  Water  Co.,  40  Cal.  -396  ;  Benjamin 
V.  Storr,  L.  R.  9  C.  P.  4U0;  Fritz  v.  Ilobson,  14  Ch.  D.  542. 

8  Shaw  V.  Boston  &  A.  R,  Co.,  159  Mass.  597,  599. 


308  LAW  OF  TORTS.  [Part  H. 

it  for  wliich  the  defendant  is  liable  to  him.^  Again:  The 
defendants  carry  on  a  manufacturing  business  in  such  a  way 
as  to  make  themselves  liable  for  causing  a  public  nuisance. 
The  plaintiff's  premises  are  filled  with  smoke,  and  his  house 
shaken  so  as  to  be  uncomfortable  for  occupation.  This  is  a 
breach  of  duty  to  the  plaintiff,  for  which  he  is  entitled  to 
damages,  though  every  one  else  in  the  vicinity  suffers  in  the 
same  way.^ 

633.  It  is  however  a  difficult  matter  to  state  what  sort  of 
detriment  will  amount  to  special  damage  within  tlie  law  of 
What  will        public  nuisances.     It  appears  to  be  necessary  in 

amount  to        ^^^q  q^^q  q£  obstructions  of  public  ways  or  waters 

special  dam-  ^  "^ 

age.  that  a  particular    user   had   been   begun  by  the 

plaintiff,  and  that  such  user  was  interrupted  by  the  wrongful 

act  of   the  defendant.  ^     Before    the    complaining   party  has 

entered  upon  the  actual  enjoyment  of  the  public  easement, 

the  wrongful  act  does  not  directly  affect  him,  or  at  least  does 

not  affect  him  in  a  manner  to  enable  a  court  to  measure  the 

loss  inflicted  upon  him.     If  he  desire  to   make    use  of  the 

easement,   he  can  complain  to  the    prosecuting    officer,  and 

require  him  to  enter  public  proceedings  against  the  offender; 

or  (so  it  seems),  he  may  proceed  to  make  his  particular  use  of 

the  easement,  and  if  the  obstruction  be  not  removed  before  he 

reaches  it,  or  in  time  for  him  to  have  the  full  enjoyment  of 

passage,  he  may  bring  an  action  for  the  damage  which  he  has 

sustained  in  the  particular  case  by  reason  of  the  obstruction. 

634.  This  latter  proposition  follows  from  the  rule  of  law 
already  noticed,  that  the  plaintiff  is  not  barred  of  a  recovery 
in  damages  by  reason  of  having  notice  of  the  existence  of  the 
nuisance  when  he  put  himself  in  the  way  of  suffering  damage 
from  it.^  Such  a  case  does  not  come  within  the  principle 
that  a  consenting  party  cannot  recover  for  damage  sustained 
by  reason  of  an  act  the  consequences  of  which  he  has  invited,^ 
since  he  has  not  consented  to  the  act  complained  of,  or  invited 

1  Benjamin  v.  Storr,  supra. 

2  Wesson  v.  Washburn  Iron  Co.,  13  Allen,  95. 

8  See  Rose  v.  Miles,  4  Maule  &  S.  101 ;  s.  c.  L.  C.  Torts,  460. 
*  Ante,  p.  302.  «  '  Volenti  non  fit  injuria.' 


Chap.  XV.  §  2.]  NUISANCE.  309 

its  consequences.  He  may  have  reason  to  suppose  that  the 
obstruction  will  be  removed  before  he  reaches  it;  or,  if  not, 
he  may  well  say  that  it  is  wrongful,  and  must  be  removed 
before  he  reaches  it,  on  pain  of  damages  for  any  loss  which 
he  may  sustain  by  reason  of  its  continuance. 

635.  If  the  obstruction  of  itself  be  insufficient  to  cause  any 
actual  damage,  it  is  considered  that  no  right  of  action  can  be 
derived  by  incurring  expense  in  removing  it.  For  example : 
The  defendant  obstructs  a  public  footway,  and  the  plaintiff, 
on  coming  to  the  obstruction,  in  passing  along  the  way, 
causes  the  obstruction  to  be  removed;  and  this  is  repeated 
several  times.  No  other  damage  is  proved.  The  defendant 
is  not  liable.^ 

636.  It  follows  that  the  mere  fact  that  the  plaintiff  has  been 
turned  aside  by  reason  of  the  obstruction  and  caused  to  pro- 
ceed, if  at  all,  by  a  different  route  from  that  intended  by  him, 
is  not  special  damage;  he  must  have  suffered  some  specific 
loss  by  reason  of  being  thus  defeated  in  his  purpose.  And 
this  would  be  true  also  of  obstructions  to  the  public  wagon 
roads.  For  example:  The  defendant  obstructs  a  public 
highway  leading  directly  to  the  plaintiff's  farm,  and  the 
plaintiff  is  thereby  compelled  to  go  to  his  land,  if  at  all,  with 
his  team,  by  a  longer  and  very  circuitous  road ;  but  no  spe- 
cific loss  is  proved.  The  defendant  is  deemed  not  liable  to 
the  plaintiff.2 

637.  The  case  has  been  considered  to  be  different  if  the 
way  were  of  peculiar  use  to  the  plaintiff,  as  by  being  his  only 
means  of  reaching  his  land  with  teams.  For  example :  The 
defendant,  by  raising  the  water  of  his  dam,  floods  a  highway 
and  renders  it  impassable ;  this  highway  furnishing  the  only 
means  of  reaching  part  in  use  of  the  plaintiff's  farm.  The 
defendant  is  deemed  to  be  liable.^ 

1  Winterbottom  v.  Derby,  L.  R.  2  Ex.  316. 

2  Houck  V.  Wachter,  34  J\Id.  265.  Contra,  Brown  v.  "Watrous^ 
47  Maine,  161. 

«  Venard  v.  Cross,  8  Kans.  248.     Sed  qu. 


CHAPTER   XVI. 

DAMAGE    BY   ANIMALS. 

Statement  of  the  duty.  A  owes  to  B  the  duty  to  prevent 
his  animals  (1)  from  doing  damage  to  B,  if  A  has  notice  of 
their  propensity  to  do  damage,  and  (2)  to  prevent  them  from 
straying  from  his  own  upon  B's  premises. 

§  1.   What  must  be  Proved,  etc. 

638.  Whoever  keeps  an  animal  with  notice  that  it  has  a 
propensity  to  do  damage  is  liable  to  any  person  who,  without 

fault  of  his  own  legally  contributing  ^  to  the  in- 

Qist  of  li3.~  o       o  <_? 

biiity :  notice  jury,  suffers  an  injury  fiom  such  animal ;  and  this, 
of  propensity.    ^j^Q^jg}^  ^\^q  keeper  be  not  guilty  of  negligence  in 

regard  to  keeping  it  properly  or  securely.  The  gist  of  lia- 
bility for  the  damage  is  the  keeping  of  the  animal  after  notice 
of  the  evil  propensity;  proof  accordingly  makes  a  presump- 
tive case.^  For  example:  The  defendant  has  a  monkey, 
which  he  knows  has  a  propensity  to  bite  people.^  The  plain- 
tiff, without  fault  of  her  own,  is  bitten  by  the  animal.  The 
defendant  is  liable,  however  careful  he  may  have  been  in 
keeping  the  monkey.^ 

639.  If  the  animal  be  ferse  naturae,  it  will  (probably)  be 
presumed  that  the  defendant  had  notice  of  any  vicious  pro- 
pensity whereby  the  plaintiff  has  suffered  injury,  since  it  is 

^  As  to  this  term,  see  post,  pp.  388  et  seq. 

2  May  V.  Burdett,  9  Q.  B.  101  ;  Cases,  396.  See  Jackson  v.  Smith- 
son,  15  M.  &  W.  .563  ;  Card  v.  Case,  5  C  B.  622;  Popplewell  v.  Pierce, 
10  Cush.  509;  Oakes  v.  Spaulding,  40  Vt.  347;  Clowdis  r.  Fresno  Irriga- 
tion Co.,  118  Calif.  31.5. 

8  Osborne  v.  Chocqurel,  1896,  2  Q.  B.  109. 

*  May  V.  Burdett,  supra. 


Chap.  XVI.  §  1.]  DAMAGE   BY  ANIMALS.  311 

according  to  the  nature  of  such  an  animal  to  do  damage. ^ 
And  even  if  the  animal  be  domestic,  the  owner  will  be  pre- 
sumed to  have  notice  of  any  propensity  which  is  according 
to  the  nature  of  the  animal.  For  example:  The  defendant's 
cattle  stray  into  the  plaintiff's  garden,  and  beat  and  tear 
down  the  growing  vegetables.  The  defendant  is  liable, 
tliough  not  guilty  of  negligence ;  since  it  is  of  the  nature  of 
straying  cattle  to  do  such  damage. ^ 

640.  Ill  the  case  of  injuries  committed  by  domestic  animals 
not  according  to  the  nature  of  such  animals,  it  is  clear  that 
the  owner  is  not  liable  if  he  had  no  notice  that  the  particular 
animal  had  any  evil  propensity. 3  For  example:  The  defend- 
ant's horse  kicks  the  plaintiff,  neither  the  plaintiff  nor  the 
defendant  being  at  fault,  and  the  defendant  having  no  notice 
of  a  propensity  of  the  horse  to  kick.  The  defendant  is  not 
liable ;  since  it  is  not  of  the  nature  of  horses  to  kick  people, 
when  not  provoked  to  the  act.* 

641.  Statutes  have  been  passed,  declaring  it  unnecessary  in 
an  action  against  the  owner  of  a  dog  to  prove  notice  of  a 
propensity  of  the  animal  to  injure  sheep  or  cattle.  In  the 
absence  of  statute  however  the  rule  requiring  notice  of  the 
vicious  propensity  prevails  in  regard  to  dogs  as  well  as  with 
regard  to  other  domestic  animals.^ 

642.  While  however  negligence  in  the  owner  of  the  animal 
is  not  necessary  to  constitute  a  breach  of   duty 

when  the  '  scienter '  can  be  proved,  negligence  in      ^^  ^^^^^' 
the  care  of  the  animal  will  render  the  owner  liable,  though, 
he  did  not  know  of  the  propensity. 

643.  When  damage  is  done  by  animals  upon  the  owner's 
'premises^  a  different  question,  or  set  of  questions,  may  arise. 

1  If  a -wild  animal  has  been  tamed  and  domesticated,  the  case  may  be 
different.     See  arguments  in  May  v.  Burdett,  supra. 

2  See  Cox  v.  Burbridge,  13  C.^B.  n.  s.  430,  438,  Williams,  J. 
8  L.  C.  Torts,  490. 

*  Cox  V.  Burbridge,  supra.  The  plaintiff  was  a  boy  playing  in  the 
highway  at  the  time  of  the  injury,  but  there  was  no  evidence  that  he  had 
done  anything  to  irritate  the  horse. 

6  See  L.  C.  Torts,  490. 


312  LAW   OF  TORTS.  [Part  IL 

The  case  will  ordinarily  turn  upon  negligence,  and  negligence 
of  a  special  kind,  to  wit,  with  reference  to  the  occupancy  of 
premises.  The  place  where  the  damage  was  done  may  enter 
into  the  case ;  a  bull  may  well  be  left  at  large  in  the  owner's 
field,  while  a  savage  dog  should  not  be.^  And  then  the 
character  in  which  the  person  hurt  entered  the  premises  will 
have  to  be  considered  in  determining  the  question  of  duty. 
Such  person  may  have  been  '  invited  '  to  enter ;  he  may  have 
been  a  trespasser;  he  may  have  been  a  bare  licensee.  The 
owner  of  premises  obviously  owes  a  duty  to  persons  whom  he 
induces  to  come  there  for  his  benefit,  to  wit,  that  they  may 
do  so  safely  so  far  as  his  own  conduct  is  concerned;  while 
towards  others  his  duty  may  be  very  different.  And  in  all 
these  cases  there  may  be  a  question  of  the  effect  of  notice  by 
the  occupant,  or  knowledge  by  the  person  injured,  of  the  state 
of  things.  For  the  principles  touching  such  cases  the  reader 
must  look  to  that  part  of  the  chapter  on  Negligence,  relating 
to  the  Use  of  Premises. ^ 

§  2.    Of  Escape  of  Animals:   What  must  be  Proved, 

ETC. 

644.    By  the  common  law  of  England  and  of  most  of  our 
States  the  owner  of  land  is  bound  to  keep  it  fenced;  and  if 
his  animals  escape  and  get   into  his   neighbor's 
premises,  he  is  liable  for  the  very  act  as  for  tres- 
pass,^ whether  the  escape  was  owing  to  his  negligence  or  not.^ 

1  Loomis  V.  Terry,  17  Wend.  496. 

2  Chapter  xviii.,  §  10.  Section  11,  on  assuming  the  risk,  should  also  be 
noticed. 

8  Ellis  V.  Loftus  Iron  Co.,  L.  R.  10  C.  P.  10,  13;  Lee  v.  Riley,  18 
C.  B.  N.  s.  722.  As  to  dogs  see  Read  v.  Edwards,  17  C.  B.  n.  s.  245. 
Further,  see  Pollock,  Torts,  432,  433,  2d  ed. 

*  Myers  v.  Dodd,  9  Ind.  290  ;  Webber  v.  Closson,  3.5  Maine,  26.  How 
strong  the  common  law  upon  this  subject  is,  is  shown  by  cases  applying 
the  rule  unhesitatingly  to  strays  from  open  commons.  See  Year  Book, 
20  Edw.  4,  11,  pi,  10,  where  to  an  action  of  trespass  with  cattle  the  de- 
fendant pleaded  that  his  land  adjoined  a  place  where  he  had  common, 
and  that  his  cattle  strayed  from  the  common,  and  that  he  drove  them  back 


Chap.  XVI.  §  2.]  DAMAGE  BY   ANIMALS.  313 

Proof  of  the  animal's  coming  upon  the  pkiintiff's  premises 
is  enough.  The  same  is  true  indeed  though  the  defendant's 
animals  may  not  have  escaped  from  his  enclosure ;  if  still  an 
animal  commit  damage,  by  putting  part  of  its  body  over, 
through,  or  beyond  the  boundary  line,  the  defendant  will  be 
liable  regardless  of  negligence.  For  example :  The  defend- 
ant's horse  bites  and  kicks  the  plaintiff's  horse  through  the 
partition  fence  between  the  plaintiff's  and  defendant's  prem- 
ises.   The  defendant  is  liable,  though  not  guilty  of  negligence.^ 

645.  The  common-law  rule  however  has  been  variously 
modified  by  statute  in  this  country ;  and  in  some  of  the  West- 
ern States  it  is  held  inapplicable  to  the  condition  of  things. ^ 

646.  The  escape  of  animals  from  the  highway  along  which 
they  are  being  driven  or  led  is  a  different  thing.  This  latter 
is   not  a  trespass,   that  is,  a  breach  of   absolute  _  ,     . 

.  .   ^        '  '  .     Escape  of  ani- 

duty ;  liability  on  the  contrary  turns  upon  negli-  mais  from  the 

gence  on  the  part  of  the  owner  or  his  servants. '^    ^^  ^^^' 

Trespassing  or  straying  animals,  it  may  be  added,  should  not 

be  injured  unnecessarily  in  driving  them  away.* 

as  soon  as  he  could.  The  plea  was  held  bad,  the  court  saying  that  if  the 
land  in  which  the  defendant  had  common  was  not  enclosed,  he  must  still 
keep  his  beasts  there  and  out  of  the  land  of  others. 

^  Ellis  V.  Loftus  Iron  Co.,  supra. 

^  Kent,  Com.  iii.  438,  note  1,  13th  ed. ;  Kerwhacker  v.  Cleveland  R. 
Co.,  3  Ohio  St.  172. 

8  Goodwin  v.  Cheveley,  4  H.  &  N.  631 ;  TiUett  v.  Ward,  10  Q.  B.  D. 
17,  where  an  ox  strayed  into  a  shop. 

4  Ante,  p.  246. 


CHAPTER   XVII. 

ESCAPE   OF  DANGEROUS   THINGS. 

Statement  of  the  duty.  A  owes  to  B  the  duty  (by  the  law 
of  England)  to  prevent  the  escape  of  any  dangerous  thing,  to 
the  damage  of  B,  brought  or  made  upon  the  premises  of  A ; 
the  escape  being  due  to  defects  within  the  control,  though  it 
may  be  not  within  the  knowledge,  of  A. 

§  1.    Of  the  Nature  of  the  Protection  required: 
What  must  be  Proved,  etc. 

647.  The  duty  considered  in  the  preceding  chapter  of  re- 
straining animals  from  doing  damage  has  been  treated  in 
Anal  t  England  as  furnishing  ground  for  an  analogous 
damage  by  duty  with  reference  to  inanimate  things  of  a 
amm  s.  peculiarly  dangerous  character,  which  the  occu- 
pant of  premises  has  brought  or  made  thereon,  —  the  duty,  to 
wit,  so  to  keep  such  things  that  they  shall  not  do  mischief  to 
the  occupant's  neighbor.  Proof  of  the  escape  of  the  danger- 
ous thing,  to  the  damage  of  the  plaintiff,  makes  a  presumptive 
right  of  action. 

648.  But  the  rule  is  not  to  be  taken  without  caution.  It  is 
laid  down  that  where  the  owner  of  land,  without  negligence 
Use  of  land  in  o^"  other  misconduct,  uses  his  land  in  the  ordinary 
ordinary  man-  manner,  he  will  not  be  liable  in  damages,  though 

ner;  mines  •     ^  •    e       ^        ^  ^       ^         ^        1  ■  1  1  • 

and  reser-  mischiei  Should  thereby  be  occasioned  to  his 
voirs.  neighbor.  1     Still  a  person  wdio,  for  his  own  pur- 

poses, brings  on  his  land,  and  collects  and  keeps  there,  any- 
thing likely  to  do  mischief  if  it  escapes,  must,  by  the  law  of 
England,  keep  it  there  at  his  peril;  and  if  he  does  not,  he 
will  be  answerable,  prima  facie,  for  all  the  damage  which  is 
the  natural  consequence  of  its  escape ;  and  this  however  care- 

1  Chaseniore  r.  Richards,  7  H.  L.  Cas.  349.  As  to  malice  see  id.  388, 
and  ante,  pp.  22,  23. 


Chap.  XVII.  §  1.]    ESCAPE   OF  DANGEROUS  THINGS.  315 

ful  he  may  have  been,  and  whatever  precautions  he  may  have 
taken  to  prevent  the  damage.^  For  example :  The  defendants 
construct  a  reservoir  on  land  separated  from  the  jjlaintiff's 
colliery  by  intervening  land.  Mines  under  the  site  of  the 
reservoir,  and  under  part  of  the  intervening  land,  have  been 
formerly  worked ;  and  the  plaintiff  has,  by  workings  lawfully 
made  in  his  own  colliery  and  in  the  intervening  land,  opened 
an  underground  communication  between  his  own  colliery  and 
the  old  workings  under  the  reservoir.  It  has  not  been  known 
to  the  defendants,  or  to  any  person  employed  by  them  in  the 
construction  of  the  reservoir,  that  such  communication  exists, 
or  that  there  have  been  any  old  workings  under  the  site  of  the 
reservoir;  and  the  defendants  have  not  been  personally  guilty 
of  any  negligence.  The  reservoir  is  in  fact,  but  without  the 
defendants'  knowledge,  constructed  over  five  old  shafts, 
filled  with  rubbish  and  other  loose  material,  and  leading 
down  to  the  workings;  and  the  reservoir  having  been  filled 
with  water,  the  water  bursts  down  these  shafts  and  flows  by 
the  underground  channel  into  the  plaintiff's  mines,  producing 
damage.     The  defendants  are  liable.  ^ 

1  Rylands  v.  Fletcher,  L.  R.  1  Ex.  265,  Ex.  Ch. ;  L.  R.  3  H.  L.  330 ; 
Cases,  405.  The  decision  of  the  Court  of  Exchequer  (3  H.  &  C.  774)  was 
reversed.     See  National  Telephone  Co.  v.  Baker,  1893,  2  Ch.  186. 

2  Rylands  i'.  Fletcher,  supra.  See  National  Telephone  Co.  r.  Baker, 
1893,  2  Ch.  186.  The  general  rule  above  stated  has  been  the  subject  of 
great  discussion  on  both  sides  of  the  Atlantic,  since  Rylands  v.  Fletcher 
was  decided.  It  has  been  denied  by  some  of  the  American  courts,  and 
adopted  or  favored  by  others.  It  is  denied  by  Losee  v.  Buchanan,  51  N.  Y. 
476,  by  Cumberland  Telephone  v.  United  Electric  Co.,  42  Fed.  Rep.  273, 
by  Brown  v.  Collins,  53  N.  H.  442,  and  by  IMarshall  v.  Melwood,  38  N.  J. 
339;  it  is  favored  by  Shipley  v.  Fifty  Associates,  106  Mass.  194,  Balti- 
more Breweries  Co.  v.  Ranstead,  28  Atl.  Rep.  273  (Md.),  and  other  cases. 
See  further  L.  C  Torts,  497-500.  Some  tendency  to  modify  it  has 
been  shown  in  England,  but  that  is  as  much  as  can  be  said.  Ponting  v. 
Noakes,  1894,  2  Q.  B.  281,  noxious  trees  on  and  wholly  within  one's  land. 
In  substance  the  rule  stands.  See  Pollock,  Torts,  424-428,  2d  ed.  '  The 
authority  of  Rylands  v.  Fletcher  is  unquestioned,  but  Nichols  v.  Mars- 
land  [L.  R.  10  Ex.  255,  2  Ex.  Div.  1]  has  practically  empowered  juries 
to  mitigate  the  rule,  whenever  its  operation  seems  too  harsh.*  Id.  p.  428, 
2ded. 


316  LAW  OF  TORTS.  [Paet  IL 

649.  The  owners  of  the  upper  tenement  have  however,  as 
has  already  been  intimated,  in  such  cases,  a  right  to  work 
their  premises  in  the  ordinary,  reasonable,  and  proper  man- 
ner, and  are  not  liable  for  the  effects  of  water  which  flows 
down  into  the  lower  tenement  by  mere  force  of  gravitation. 
But  where  some  unusual  and  extraordinary  effort  is  put  forth 
for  effecting  the  occupant's  purj)ose,  the  owner  is  liable  for 
the  injurious  results  which  follow.^  For  example:  The  de- 
fendant, owner  of  a  coal-mine  above  the  plaintiff's  mine, 
works  out  the  whole  of  his  coal,  leaving  no  barrier  between 
his  mine  and  the  plaintiff's,  the  consequence  of  which  is, 
that  the  water  percolating  through  the  upper  mine  flows  into 
the  lower  one,  and  obstructs  the  plaintiff  in  getting  out  his 
coal.  This  is  no  breach  of  duty  by  the  defendant;  the  water 
having  flowed  down  in  its  natural  course,  and  the  defendant 
being  entitled  to  remove  all  his  coal.^  Again:  The  defend- 
ant, under  the  like  circumstances,  does  not  merely  suffer  the 
water  to  flow  through  his  mine  in  its  natural  way,  but,  in 
order  to  work  his  mine  beneficially,  pumps  up  quantities  of 
water  which  pass  into  the  plaintiff's  mine,  in  addition  to  that 
which  would  naturally  have  reached  it,  whereby  the  plaintiff 
suffers  damage.  This  is  a  breach  of  duty  to  the  plaintiff, 
though  it  is  done  without  negligence  and  in  the  due  working 
of  the  defendant's  mine.^ 

650.  If  the  damage  be  produced  by  vis  major  or  by  the  act 
of  God,*  or  otherwise,  without  the  intervention  of  acts  or 
Damaee  by  omission  of  duty  by  the  occupant  or  those  for 
vis  major  or  whom  he  is  responsible,  the  case  will  be  different, 
act  0  0  .  jj^  ^j^g  example  given,  if  the  damage  had  been 
caused  by  lightning  bursting  the  reservoir,^  and  not  by  reason 

1  Rylands  v.  Fletcher,  supra;  Fletcher  v.  Smith,  2  App.  Cas.  781; 
Baird  v.  Williamson,  15  C  B.  n.  s.  376. 

2  Smith  V.  Kenrick,  7  C  B.  515,  564. 
8  Baird  v.  Williamson,  supra. 

*  Nichols  V.  Marsland,  L.  R.  10  Ex.  255;  s.  c.  2  Ex.  Div.  1,  showing 
that  this  term  includes  events  which  human  foresight  could  not  reasonably 
anticipate.     This  case  in  both  stages  is  very  instructive. 

6  Rylands  v.  Fletcher,  L.  R.  3  II.  L.  330 ;  Cases,  405. 


Chap.  XVII.  §  1.]    ESCAPE  OF  DANGEROUS  THINGS.  317 

of  the  existence  of  the  openings  into  the  lower  mines,  the 
defendants  would  not  have  been  liable.  Again :  The  defends 
ant's  tenants,  the  plaintiffs,  occupy  the  lower  story  of  a  ware- 
house, of  which  the  defendant  occupies  the  upper.  A  hole 
has  been  gnawed  by  rats  through  a  box  into  which  water  from 
the  gutters  of  the  building  is  collected,  to  be  thence  dis- 
charged by  a  pipe  into  the  drains.  The  water,  now  pouring 
through  the  hole,  runs  down  and  wets  the  plaintiff's  goods. 
The  defendant  is  not  liable.^  Again:  The  defendant  owns 
premises  on  which  stand  yew-trees,  which  to  his  knowledge 
are  poisonous.  A  third  person  clips  some  of  the  branches, 
which  fall  upon  the  plaintiff's  land,  and  poison  the  latter's 
horses.  The  defendant  is  not  liable.  ^ 

651.  Again  if  the  bringing  the  dangerous  thing  upon  the 
occupant's  land,  and  all  the  works  connected  therewith,  be 
effected  under  sanction  of  legislative  authority.  Legislative 
the  fact  that  they  result  in  damage  to  the  party's  authority, 
neighbor  by  purely  natural  escape  or  by  authorized  channels, 
and  not  by  reason  of  negligence  attributable  to  the  occuj)ant, 
will  not  render  the  occupant  liable.^  It  is  also  certain,  a 
fortiori,  in  such  a  case,  that,  if  the  escape  be  caused  by 
the  act  of  God,  no  liability  follows.  For  example :  The  de- 
fendant is  charged  by  law  with  the  duty  of  maintaining  water 
tanks  in  his  district  for  purposes  of  irrigation,  as  part  of  a 
national  system  of  irrigation,  for  the  welfare  of  the  people. 
By  reason  of  an  extraordinary  flood,  and  not  by  reason  of 
the  bad  condition  of  the  works,  one  of  these  tanks  gives  way, 
causing  damage  to  the  plaintiffs.  The  plaintiffs  cannot  re- 
cover therefor.* 

652.  On  the  other  hand,  if  the  works  be  of  a  nature  to  re- 
quire legislative  sanction,  the  proprietor  or  manager,  when 

1  Carstairs  v.  Taylor,  L.  R.  6  Ex.  217;  Ross  v.  Fedden,  L.  R.  7  Q.  B. 
661.  See  Doupe  u.  Genin,  45  N.  Y.  119.  But  see  Marshall  v.  Cohen, 
44  Ga.  489. 

2  Wilson  V.  Newberry,  L.  R.  7  Q.  B.  31. 

8  See  Vaughan  v.  Taff  Vale  Ry.  Co.,  5  H.  &  N.  679. 

*  Madras  Ry.  Co.  v.  The  Zemmdar,  L.  R.  1  Ind.  App.  364. 


318  LAW  OF  TORTS.  [Part  II. 

not  having  it,  will  be  liable  for  damage  produced  by  any 
escape  or  breaking  thereof,  however  occurring.  For  exam- 
ple :  The  defendants  make  use  of  locomotive  engines,  without 
having  obtained  the  necessary  authority  of  law,  and  the  plain- 
tiff suffers  damage  by  reason  of  fire  proceeding  from  the  same. 
The  defendants  are  liable,  though  not  guilty  of  any  negligence 
in  the  management  of  the  engines,  and  though  they  would  not 
have  been  liable  had  they  had  the  proper  authority.  ^ 

§  2.    Of  the  AiviEEicAN  Law. 

653.  The  foregoing  is  the  law  of  England.  The  American 
law  cannot  be  said  as  yet  to  have  become  settled  in  regard 
to  this  subject.  The  authorities  are  conflicting ;  but  the  ten- 
dency appears  to  be  towards  the  English  doctrine  —  making 
the  keeper  of  certain  things  naturally  dangerous  a  virtual  in- 
surer, presumptively,  against  harm  from  them.^ 

654.  It  has  been  laid  down  accordingly  in  this  country,  that 
one  who  knowingly  keeps  large  quantities  of  nitro-glycerine, 

dynamite,  or  gunpowder  on  one's  premises  must 
^Tituedf''  keep  it  from  doing  harm  by  explosion,  though 
points  de-         one  complies  with  the  law  regulating  such  things 

and  is  not  guilty  of  negligence.^  So  too  it  has 
been  decided  that  the  occupant  of  premises  may  be  liable 
for  damage  caused  by  the  fail  of  ice  or  snow  from  the  roof 
of  his  building  when  the  roof  is  so  constructed  as  to  make 
it  substantially  certain  that,  if  the  snow  be  not  removed, 
accidents  from  snow-slides  will  occur;  although  the  roof  be 
constructed  in  the  usual   manner   of  the  time.^     And  with 

1  Jones  V.  Festiniog  Ry.  Co.,  L.  R.  3  Q.  B.  733 ;  Vaughan  v.  Taff 
Vale  Ry.  Co.,  supra. 

2  Bradford  Glycerine  Co.  v.  St.  Mary's  Woolen  Co.,  45  L.  R.  A.  658 
(Ohio) ;  Kinney  v.  Gerdes,  116  Ala.  310 ;  Rudder  v.  Gerdes,  id.  332  ; 
Shipley  v.  Fifty  Associates,  106  Mass.  194  ;  Wilson  v.  New  Bedford,  108 
Mass.  261.  Contra,  Losee  v.  Buchanan,  51  N.  Y.  476.  See  Harvard 
Law  Rev.,  March,  1900,  p.  600.  The  Alabama  cases  however  put  the 
wrong  as  one  of  nuisance. 

8  Bradford  Glycerine  Co.  v.  St.  Mary's  Woolen  Co.,  supra. 

*  Shipley  v.  Fifty  Associates,  106  Mass.  194 ;  Fitzpatrick  v.  Welch, 


Chap.  XVII.  §  2.]    ESCAPE  OF  DANGEROUS  THINGS.  319 

regard  to  water  collected  in  reservoirs,  it  is  held  that  the 
embankments  must  be  so  thoroughly  constructed  that  the 
water  cannot  percolate  through  them.^ 

655.  The  doctrine  has  also  been  laid  down  that  where  the 
alleged  rights  of  adjoining  landowners  conflict,  it  is  better 
that  one  of  them  should  yield  to  the  other  and  forego  a  par- 
ticular use  of  his  land,  rather  than,  by  insisting  upon  that  use, 
deprive  the  other  altogether  of  the  use  of  his  property ;  which 
might  often  be  the  consequence  of  carrying  on  the  operation. 
This  would  of  course  be  an  obvious  principle  if  stated  with 
regard  to  a  nuisance ;  but  it  is  treated  as  apjilicable  to  other 
wrongs  as  well.  For  example :  The  defendants,  in  the  course 
of  digging  a  canal  through  their  land,  for  which  purpose  they 
are  clothed  with  legislative  authority,  ^  find  it  necessary  to 
blast  rocks  by  the  use  of  gunpowder.  The  result  of  the  blast- 
ing is  to  throw  fragments  of  rock  against  the  plaintiff's  house, 
whereby  the  plaintiff  suffers  damage.  The  defendants  are 
deemed  liable,  though  not  guilty  of  negligence.^ 

656.  A  distinction  has  however  been  declared  to  exist  be- 
tween an  injury  sustained  in  that  way,  and  one  sustained  by 
the  explosion  of  a  boiler  on  the  defendant's  premises.  For 
damage  sustained  in  the  latter  way,  it  is  deemed  that  no  right 
of  action  arises  unless  the  explosion  was  due  to  negligence 
of  the  manager.*  The  use  of  a  boiler  is  not  necessarily 
dangerous.^ 

174  Mass.  486.  But  in  some  States  it  is  enough  that  ordinary  care 
was  exercised.  Underwood  v.  Waldron,  33  Mich.  232,  238 ;  Garland  v. 
Towne,  55  N.  H.  55. 

1  Wilson  V.  New  Bedford,  108  Mass.  261 ;  Pixley  v.  Clark,  35  N.  Y. 
520. 

2  The  work  could  not  therefore  be  a  nuisance  when  carefully 
conducted. 

8  Hay  V.  Cohoes  Co.,  2  N.  Y.  159. 

*  Losee  v.  Buchanan,  51  N.  Y.  476.  In  this  case  the  rule  in  Ry lands 
V.  Fletcher,  supra,  is  denied. 

5  Further,  see  Cooley,  Torts,  677,  680,  2d  ed. ;  L.  C.  Torts,  496  et 
seq. 


PART  III. 
EVENTS  CAUSED  BY  NEGLIGENCE. 

BREACH  OF  DUTY  TO  REFRAIN  FROM 
NEGLIGENCE. 


21 


CHAPTER   XVIII. 

NEGLIGENCE. 

Statement  of  the  duty.  A,  seeing  or  knowing,  or  being  in  a 
situation  to  see  or  know,  that  acts  or  omissions  of  his,  in  fail- 
ing to  exercise  ordinary  care,  skill,  or  diligence  towards  B,  or, 
in  matters  of  care,  skill,  or  diligence,  to  show  ordinary  regard 
for  B's  rights,  in  a  particular  place  or  juncture,  will  be  apt  to 
do  harm  to  B,  owes  to  B  the  duty  not  to  be  guilty  of  such 
acts  or  omissions,  to  the  damage  of  B. 

The  foregoing  is  a  statement  of  duty,  not  for  negligence 
universally,  but  for  its  more  common  forms.  It  would  be 
impracticable  to  go  further  without  making  the  statement 
prolix. 

Like  fraud  and  malice,  negligence  is  only  an  element  of 
tort,  not  itself  a  tort;  it  is  wrongful,  but  not  alone  a  wrong. ^ 

Unlike  fraud  and  malice,  negligence  is  not  represented  by 
a  number  of  torts  having  names  of  their  own;  its  origin  in 
the  law  is  too  modern  for  that. 

In  some  States  the  statement  of  duty  would  need  the  modi- 
fication, that  the  plaintiff  must  show  that  he  was  not  in  con- 
tributory fault  in  the  case. 

The  fundamental  distinction  between  the  wrongs  of  Part  I. 
and  Part  II.  on  the  one  hand,  and  those  of  Negligence  on  the 
other,  has  been  stated  in  treating  of  General  Theory  and 
Doctrine.  The  consequences  complained  of  in  the  first  two 
divisions  are  immediate,  or  begin  immediately,  upon  the 
wrongful  act  or  omission;  the  consequences  complained  of 
in  negligence  do  not  usually  follow  at  once  upon  the  wrong-^ 
ful  act  or  omission,  and  they  are  never  intended.^ 

^  Ante,  p.  5,  note. 

2  Ante,  pp.  12,  13.  Of  course  a  man  migTit  intend  the  harmful  conse- 
quences of  liis  negligence ;  but  the  case  would  then  belong  to  the  cate- 
gory of  intended  wrongs.     And  to  make  a  case  for  that  category,  where 


324  LAW  OF  TORTS.  [Part  III. 

§  1.    What  must  be  Proved,  etc. 

657.  A  man  may  sustain  damage  by  reason  of  the  negli- 
Eiements  of  gence  of  another,  and  yet  have  no  right  of  action 
liability.  for  the  same.  Another  element  is  necessary; 
namely,  that  the  defendant  owed  a  duty  to  the  plaintiff  not 
to  be  negligent.^  The  rule  is  not  peculiar  to  negligence,^  but 
it  needs  emphasis  here.  Negligence,  breach  of  duty  to  the 
plaintiff,  and  damage,  are  then  the  essential  elements  of  the 
right  of  action.  In  many  cases  the  duty  will  be  obvious  on 
the  general  facts,  and  hence  will  not  call  for  special  consider- 
ation ;  in  other  cases  it  will  not  be  obvious  that  there  was  a 
duty,  or  what  the  nature  of  the  duty  was.  Such  cases  will 
call  for  examination  of  the  question. 

658.  The  result  is,  that  it  will  be  necessary  to  consider, 
first,  the  meaning  of  '  negligence,'  as  applicable  to  all  cases 
in  general,  and,  secondly,  assuming  negligence,  whether  the 
negligence  (and  damage)  amounted  to  a  breach  of  duty  to  the 
plaintiff.  Damage,  as  a  question  of  law,  will  be  considered 
in  the  closing  sections  of  the  chapter. 

§  2.    Of  the  Legal  Conception  of  Negligence  in 

General. 

659.  Negligence  in  the  law  is  a  technical  term,  and  a  com- 
plex conception.  Conduct  is  considered  negligent  in  law 
Popular  and     which  might  not  be  considered  negligent  in  the 

legal  meaning  popular    acceptation    of    the    term.     Indeed   the 

of  negligence :    *    ^  ^  .         . 

rashness  and    popular  understanding  is  too  apt  to  make  its  way, 

wantonness.  ^^^  unguarded  or  mistaken  language,  into  the  law 
books,  — some  special  phase  of  the  subject  in  its  technical 
sense  being  spoken  of  perhaps  as  something  other  than 
negligence. 

the  consequence  was  not,  at  least  in  part,  immediate,  it  would  be  neces- 
sary to  prove  tliat  the  result  was  intended.  Hence,  as  was  said  on  p.  13, 
the  immediateness  or  not  of  the  result  is  material;  all  the  difference,  on 
the  criminal  side,  between  manslaughter  and  murder  is  involved. 

1  Mem  bury  v.  Great  Western  Ry.  Co.,  14  App.  Cas.  179,  190. 

*  Ante,  p.'25. 


Chap.  XVIII.  §  2.]  NEGLIGENCE.  325 

660.  The  significance  of  this  will  be  seen  when  it  is  said 
that  negligence,  in  the  eye  of  the  law,  embraces  not  merely 
want  of  care,  its  more  familiar  form,  and  thoughtlessness,  but 
rashness  and  wantonness,  in  other  words,  danger  known  but 
disregarded  or  not  heeded.^  And  well  enough;  for  what  are 
rashness  and  wantonness  but  failure,  in  presence  of  danger, 
to  respond  to  the  prompting  of  judgment  or  conscience, 
which,  in  the  one  case  (rashness),  would  not  tolerate  over- 
confidence,  and,  in  the  other  (wantonness),  want  of  ordinary 
regard  for  another's  rights  ?2  Plainly  that  would  be  negli- 
gence. But  rashness  and  wantonness  stand  upon  a  special 
footing  in  certain  cases,  sometimes  creating  liability,  as  ^^  ill 
later  appear,  when  negligence  in  the  more  common  form 
would  not.^  That  fact,  no  doubt,  has  caused  judges  and 
writers  on  law,  now  and  then,  too  readily  to  consider  rash- 
ness as  not  negligence  at  all.* 

661.  Legally  speaking  then,  negligence  in  common  form, 
as  a  tort,  imports  misconduct  causing  unintended  harm,^  the 
misconduct  consisting  in  a  failure  to  respond  to  judgment  or 
conscience  according  to  ordinary  standards  of  conduct. 

662.  Still,  it  should  be  distinctly  observed  that  the  law 
acts,  or  refuses  to  act,  in  accordance  with  the  manifestation 
of  conduct;  in  no  case  does  it  inquire  into  the  defendant's 

1  See  Claridge  v.  So.  Staffordshire  Tramway  Co.,  1892,  1  Q.  B.  422, 
fast  driving;  Maynard  v.  Boston  R.  Co.,  115  Mass.  457.  Rashness, 
recklessness,  and  wantonness  are  words  applied  indifferently,  in  many 
cases,  to  danger  known  but  not  heeded ;  but  rashness  properly  is  over- 
confidence,  and  recklessness  or  wantonness,  disregard  of  another's  riglits. 
See  for  instance  Southern  Ry.  Co.  v.  Bush,  122  Ala.  470  ;  Louisville  R. 
Co.  V.  Orr,  121  Ala.  489  ;  Louisville  R.  Co.  v.  Brown,  id.  221 ;  Abrahams 
V.  Los  Angeles  Traction  Co.,  124  Calif.  411.  All  three  approach,  but 
still  fall  short  of,  intentional  wrongdoing.  They  are  however  treated 
as  evidence  of  malice  and  trespass  as  well  as  of  negligence.  See  ante, 
pp.  21,  22,  184,  189.  Rashness  and  recklessness  are  also  evidence  in 
deceit,  on  the  allegation  of  fraud.     See  ante,  p.  69. 

2  If  the  function  itself  is  so  dulled  as  not  to  speak,  it  is  a  case  of 
mental  derangement,  more  or  less,  and  may  not  be  negligence. 

^  See  post,  p.  35(5. 

*  See  e.  g.  Smith  v.  Baker,  1891,  A.  C.  325,  347,  Lord  Bramwell. 

6  Ante,  p.  13.  .\ 


326  LAW  OF  TORTS.  [Part  lit 

attitude  of  mind  to  determine  whether  he  was  guilty  of  negli- 

o'ence.     In  this  legal  conception  of  it,  as  mani- 
Manifesta-  .        . 

tion  of  con-      festation,  negligence  may  consist  in  acts  as  well 

duct  the  test,  ^^g  jj^  omissions,  as  follows  from  what  has  already 
been  said. 

663.  Further,  negligence  may  relate  eitlier  to  things  seen 
or  known,  or  to  things  unseen  or  unknown ;  a  man  may  fail 

Negligence  in  "^  ^^^^^J  ^7  ignorance,  when  his  negligence  may 
not  seeing  or    be   Called   '  passive '    negligence,  as  well   as   by 
nowing.    jjno-^vledge,  when  his  negligence   may  be  called 
'  active '  negligence. 

664.  Negligence  in  its  common  form  as  a  tort  may  now  be 
defined  thus:  It  consists  in  failure  to  conform  (1)  to  the  con- 
duct of  a  prudent,  careful,  skilful,  or  diligent  man 
(or  and  diligent  man),  or  (2),  in  cases  calling  for 

prudence,  care,  skill,  or  diligence,  to  the  conduct  of  a  man 
having  ordinary  regard  for  the  rights  of  others,  —  or  putting 
the  two  cases  together,  to  the  conduct  of  the  ordinary  or 
average  man,^  in  matters  of  prudence,  care,  skill,  or  dili- 
gence, —  in  the  particular  situation ;  and  if  that  failure  is  a 
breach  of  duty  to  one  who  sustains  damage  thereby,  that 
person  has  a  right  of  action. 

665.  Liability  ex  delicto  for  the  consequences  of  negligence 
as  regarded  by  the  law  arises  however  by  reason  only  of  acts, 
or  omissions  after  the  doing  of  acts.  In  respect  of  omissions 
not  preceded  at  any  time  by  overt  acts,  eitlier  by  the  defend- 
ant or  by  his  predecessors  in  interest,  in  connection  with  that 
which  occasions  the  damage,  there  may  indeed  be  liability  ex 
contractu  (the  omission  being  a  breach  of  contract) ;  there  can 
be  no  liability  in  tort  as  for  negligence.  An  innkeeper  may 
be  liable  for  refusing  to  receive  a  man  as  guest  into  his  inn; 
but  the  liability  incurred  cannot  properly  be  treated  as  grow- 
ing out  of  negligence. 

1  Other  terms  are  '  fair  man,'  '  man  of  average  intelligence,'  '  man  of 
ordinary  intelligence  or  care,  skill,  or  prudence,'  and  the  like,  according 
to  the  j)articular  case. 


Chap.  XVIII.  §  2.]  NEGLIGEXCE,  327 

666.  There  can  arise  indeed  no  civil  liability  for  the  negli- 
gent omission  to  do  a  thing  required  by  law,  though  com- 
manded by  the  Legislature,  unless  that  neglect  be  omission 
connected  with  the  existence  of  something  already  ^^°^6- 
done.  A  town  may  be  required  to  build  a  bridge  across  a 
stream,  but  no  one  can  maintain  an  action  for  damages  against 
the  town  for  neglecting,  however  inexcusably,  to  build  the 
bridge;  though  an  action  might  be  maintained  for  damage 
caused  by  the  breaking  of  a  bridge  through  failure  to  repair 
it,  if  the  town  was  bound  to  keep  it  in  proper  condition.  In 
the  latter  case,  there  is  an  omission  preceded  (at  some  time) 
by  an  overt  act;  to  wit,  the  building  of  the  bridge.  When 
it  is  said  that  no  action  ex  delicto  can  be  maintained  for  a 
pure  non-feasance,  consisting  in  neglect  of  duty,  the  former 
sort  of  case  is  to  be  understood  as  intended. 

667.  It  is  declared  by  all  the  authorities  that  the  standard 
by  which  to  determine  whether  a  person  has  been  guilty  of 
negligence  in  common  form  is  the  conduct  of  the  standard  of 
defendant  in  the  particular  situation.  But,  if  not  liability, 
properly  understood,  this  standard  may  itself  be  misleading. 
A  blacksmith  finds  a  watch  by  the  roadside,  and  on  opening 
it  and  seeing  that  it  is  full  of  dirt,  attempts  to  clean  it,  when 
a  watchmaker  is  near;  but  in  doing  so,  though  exercising,  it 
may  be,  the  greatest  care,  he  injures  it  by  reason  of  his  lack 
of  skill.  Now  in  attempting  to  put  the  watch  in  order,  and 
thus  perhaps  preventing  its  ruin,  he  has  done  nothing  that  a 
prudent  man  might  not  have  done ;  and,  taking  the  criterion 
in  its  broadest  sense,  the  blacksmith  could  not  be  liable  to 
the  owner  of  the  watch  for  the  damage  which  he  did  to  it; 
while  the  law  would  probably  be  just  the  contrary.^ 

668.  A  prudent  blacksmith  however  would  not  have  under- 
taken to  put  the  watch  in  order;  he  would  have  taken  it  to 
the  watchmaker.  The  j^rudent  man,  ordinarily,  with  regard 
to  undertaking  an  act,  is  the  man  who  has  acquired  the  skill 
to   do   the  act  which   he  undertakes;    a  man  who   has  not 

1  It  is  to  be  noticed  that  as  a  watchmaker  is  near,  the  act  could  not 
be  considered  one  of  necessity. 


328  LAW  or  TORTS.  [PartIIL 

acquired  that  special  skill  is  imprudent  in  undertaking  to  do 
the  act,  however  careful  he  may  be,  and  however  great  his 
skill  in  other  things.^ 

669.  The  criterion  then  of  the  conduct  of  the  defendant  in 
the  undertaking  of  an  act  is  to  be  understood  with  the  limits 
suggested.  The  question  to  be  raised  with  regard  to  a  man's 
conduct  brought  in  question  in  such  a  case  is,  whether  an 
ordinary  or  average  man  of  his  calling  or  business  or  skill 
would  have  undertaken  to  do  the  thing  in  question;  suppos- 
ing the  party  to  have  exercised  due  care  in  executing  the 
work  undertaken. 

670.  When  an  act  has  been  undertaken  by  a  person  whose 
business  or  profession  covers  the  doing  of  acts  of  the  kind  in 
question,  the  question  to  be  decided  is,  whether  that  skill  or 
care  or  diligence  has  been  exercised  which  a  man  of  the  same 
l)usiness  would  have  exercised  in  the  same  situation. 

671.  In  regard  to  omissions  (after  overt  acts)  to  perform  acts 
not  distinctly  and  certainly  required  by  law,  the  question  of  the 
duty  to  perform  them  is  to  be  decided  by  the  general  practice 
of  prudent  or  careful  or  diligent  men  of  the  same  occupation, 
when  such  a  practice  exists.  When  no  such  general  practice 
exists,  as  perhaps  in  regard  to  the  use  of  fire-arms  or  other 
dangerous  weapons, '^^  the  question  is  decided  upon  the  reason- 

1  See  Dean  v.  Keate,  3  Campb.  4. 

2  The  rule  in  early  times  in  regard  to  such  cases  seems  to  have  been 
that  the  defendant  had  to  exempt  himself  from  liability  for  the  damage 
done,  if  he  could,  by  showing  that  the  misfortune  happened  entirely 
without  his  will,  or  at  least  without  his  fault.  See  Year  Book,  21  Hen. 
7,  28  (shooting  at  butts)  ;  Weaver  v.  Ward,  Hob,  1:34  ;  Lambert  v.  Bussey, 
T.  Raym.  421.  But  the  rule  has  changed  in  conformity  with  modern 
theories  of  civil  liability,  as  shown  ante,  p.  190,  and  the  test  now  is  of 
negligence  as  in  other  cases.  Nitro-Glycerine  Case,  15  W^all.  524;  Moebs 
V.  Becker,  46  N.  J.  41 ;  Winans  v.  Randolph,  169  Penn.  St.  606;  McCleary 
V.  Frantz,  160  Penn.  St.  535  ;  Scanlon  i:  Wedger,  150  Mass.  462  ;  Glueck  v. 
Scheld,  125  Calif.  288 ;  Stanley  v.  Powell,  1891,  1  Q.  B.  86.  See  also  Dixon 
V.  Bell,  5  Maule  &  S.  198  ;  Cases,  435.  Greater  care  will  be  required  in 
the  use  of  such  weapons  than  in  that  of  things  not  dangerous ;  but  the 
question  still  is  of  the  conduct  of  the  prudent  man  in  using  them,  and  that 
question  is  one  of  fact.     Moebs  v.  Becker  and  McCleary  v.  Frantz,  supra. 

Note  then  the  distinction  between  the  firing  off  a  gun,  and  such  cases, 


Chap.  XVIII.  §  2.]  NEGLIGENCE.  329 

ably  supposable  conduct,  higher  or  lower,  of  the  prudent  man, 
according  to  the  circumstances  or  the  nature  of  the  case.^ 

672.  In  the  more  common  cases,  such  as  actions  for  damage 
to  property  or  for  bodily  injuries  caused  by  collisions,  the 
falling  of  timbers  or  other  materials,  or  of  build-  Due  or  reason- 
ings, unguarded  excavations  or  openings,  obstruc-  ^^^^  care, 
tions  in  the  highway,  blasting,  explosions,  fires,  and  run- 
aways, and  endless  other  '  accidents  '  so-called,  —  in  common 
cases  such  as  these  the  question  actually  put  to  the  jury  or 
to  the  judge  for  decision  is  whether  the  defendant  was  in  the 
exercise  of  due  or  reasonable  care  at  the  time  of  the  misfor- 
tune. Other  questions  may  be  involved;  but  the  question 
of  the  defendant's  negligence  is  always  fundamental,  and 
usually  takes  the  form  stated. 

673.  A  remark  should  be  made  upon  the  question  whether 
the  conclusion  or  inference  to  be  drawn  from  the    facts  in 
the  case  of  an  action  for  negligence  is  a  matter  of    province  of 
law  or  of  fact.     The  authorities  do  not  give  any    court  and 
categorical  answer  to  the  question,  but  this  ap-    ^^^' 
pears  to  be  the  effect  of  them :  Where  the  facts  are  found, 
and  it  is  manifest,  beyond  ground  for  question,  that  a  jjru- 
dent  man  would  or  would  not  act  or  omit  to  act  as  the  defend- 
ant has  done,  the  conclusion  or  inference  may  be  considered 
a  matter  of  law.     This  is  true  whether  the  question  be  one 
of  negligence  in  the  defendant  or  contributory  negligence,  ^ 
negligence  in  the  plaintiff.^     The  same  is  also  true  where  the 

as  explosions  of  nitro-glycerine  or  the  bursting  of  reservoirs  of  the  chap- 
ter preceding.     Ante,  pp.  ;31.5,  318. 

1  See  Mulligan  v.  New  Britain,  69  Conn.  96 ;  Uggla  v.  West  End  Ry. 
Co.,  160  Mass.  351 ;  Ellis  v.  Lynn  K.  Co.,  id.  341. 

2  The  so-called  '  look  and  listen  '  rule  in  regard  to  crossing  steam  or 
electric  railways  is  an  example.  Northern  Pacific  R.  Co.  v.  Freeman, 
174  U.  S.  379^ Cawley  v.  La  Crosse  Ry.  Co.,  101  Wis.  145.  The  rule  is 
not  accepted  everywhere.  Atlantic  City  R.  Co.  v.  Goodin,  45  L.  R.  A. 
671  (N.  J.).     See  Harvard  Law  Rev.,  Nov.  1899,  p.  226;  post,  p.  393. 

2  '  We  are  of  opinion,'  said  Mr.  Justice  Brewer,  in  Elliott  v.  Chicago 
Ry.  Co.,  150  U.  S.  245,246,  'that  the  deceased  was  guilty  of  contribu- 


330  LAW  OF  TORTS.  [Part  IIL 

law  has  prescribed,  as  in  some  cases  it  has,^  the  nature  of  the 
duty,  and  also  where  there  exists  a  well-known  practice  in 
the  community,  of  a  proper  character;  in  such  cases  the 
standard  of  duty  is  fixed  in  regard  to  the  very  conduct  to  be 
pursued,  — given  the  facts,  and  the  conclusion  is  of  law.  In 
other  and  more  numerous  cases  the  conclusion  or  inference 
is  one  of  fact.^ 

674.  It  should  further  be  stated  that  a  very  large  part  of 
the  litigation  pertaining  to  suits  for  negligence  turns  upon 
the  question  whether  the  facts  submitted  to  the  court  make  a 
case  which  may  be  submitted  to  the  jury,  in  jury  trials,  as 
furnishing  evidence  upon  which  negligence  may  properly  be 
found.  To  consider  such  questions  would  require  a  detailed 
examination  of  the  authorities  beyond  the  purpose  of  this 
book. 

675.  Thus  far  of  what  may  be  called  the  ordinary  doctrine 
of  negligence,  or  negligence  in  common  form,  where  the  rela- 
tion of  the  defendant  to  the  plaintiff  is    merely 

Special  cases.      i  ^  ^  -i 

that  01  man  to  man,  no  contract  between  the  par- 

toiy  negligence,  such  as  to  bar  any  recovery.  It  is  true  that  questions 
of  negligence  and  contributory  negligence  are,  ordinarily,  questions  of 
fact  to  be  passed  upon  by  a  jury;  yet  when  the  undisputed  evidence  is 
so  conclusive  that  the  court  would  be  compelled  to  set  aside  a  verdict 
returned  in  opposition  to  it,  it  may  withdraw  the  case  from  the  consider 
ation  of  the  jury,  and  direct  a  verdict.  Railroad  Co.  v.  Houston,  95  U.  S. 
697  ;  Schofield  v.  Chicago,  Milwaukee,  &  St.  Paul  Railroad,  114  U.  S.  615  ; 
Delaware,  Lackawanna,  etc.  Railroad  Co.  v.  Converse,  139  U.  S.  469; 
Aerkfet  i'.  Humjihreys,  145  U.  S.  418.'  But  if  reasonable  men  might 
differ,  the  question  is  for  the  jury.  Warner  v.  Baltimore  R.  Co.,  168 
U.  S.  339. 

1  Thus  in  some  States  trustees  in  making  investments  of  funds  must 
invest  them  in  first  mortgages  of  real  estate,  or  in  government  securities, 
unless  the  instrument  (if  any)  creating  the  trust  otherwise  prescribes  or 
permits.  See  Hemphill's  Estate,  18  Penn.  St.  303.  Practice  or  advice 
of  others,  however  competent,  would  not  excuse  any  departure  from  the 
requirement,  in  the  absence  of  extraordinary  circumstances.  The  rule 
just  stated  in  regard  to  the  funds  in  which  investment  should  be  made  is 
not  universal.  New  England  Trust  Co.  v.  Eaton,  140  Mass.  532,  535; 
Brown  v.  French,  125  Mass.  410.     See  post,  pp.  349,  350. 

2  See  L.  C.  Torts,  589-596. 


Chap.  XVIII.  §  3.]  NEGLIGENCE.  331 

ties  existing  to  modify  the  general  doctrine,  or  to  direct  it 
into  any  particular  channel,  and  no  special  situation  or  office 
affecting  it  in  law.  Several  classes  of  cases  will  now  be  con- 
sidered in  which  the  relation  of  the  parties  is  more  or  less 
affected  by  contract  or  by  law,  the  general  standard  of  lia- 
bility being  more  or  less  affected  accordingly,  or  super- 
seded altogether;  these  to  be  followed  by  cases  in  which 
the  question  is  whether  the  defendant  owed  any  duty  to  the 
plaintiff.  Q  ^ 

§  3.    Of  Innkeeper  and  Guest. 

676.  With  regard  to  the  duties  of  innkeepers,  it  will  be 

almost  sufficient  in  the  present  connection  to  say  that,  though 

it  has  sometimes  been  considered  that  for  loss  or    „    ,. 

.  ,  .,.         -,  T       Negligence, 

damage  to  the  goods  of  guests  liability  depends 

upon  the  question  of  negligence  in  the  host,  or  in  his  servants 

acting  for  him,^  it  is  now  more  generally  considered  that  an 

innkeeper's  liability  for  the  failure  to  keep  the  goods  of  his 

guest  safely,  when  once  delivered  into  the  former's  custody, 

arises  independently  of  the  question  of  negligence.      The  host 

is  now  held  liable  for  damage  to  or  loss  of  the  goods  put  in 

his  custody,  though  he  exercise  the  greatest  diligence  in  the 

care  of  them,  unless  the  loss  occur  by  the  guest's  negligence, 

or  by  vis  major,  inevitable  accident,  or  the  act  of  God.^ 

677.  It  follows,  a  fortiori,  that  the  innkeeper  is  liable  in 
case  of  loss  sustained  by  reason  of  his  own  negligence,  or  that 
of  his  servants ;  but,  inasmuch  as  the  question  of  his  liability 

1  Dawson  v.  Charaney,  5  Q.  B.  164;  Merritt  v.  Claghorn,  23  Vt.  177; 
Metcalf  V.  Hess,  14  111.  129. 

2  Armistead  v.  Wilde,  17  Q.  B.  261 ;  Cashill  ;,'.  Wright,  6  El.  &  B. 
891;  Morgan  v.  Ravey,  6  II.  &  N.  265;  Oppenheim  v.  White  Lion 
Hotel  Co.,  L.  R.  6  C.  P.  515;  Shaw  r.  Berry,  31  Maine,  478;  Norcross 
V.  Norcross,  53  Maine,  163 ;  Sibley  v.  Aldrich,  33  N.  H.  553 ;  Manning 
r.  Wells,  9  Humph.  746  ;  Thickstun  v.  Howard,  8  Blacki,  535 ;  Berk- 
shire Woollen  Co.  i:  Proctor,  7  Cush.  417;  Cohen  v.  P>ost,  2  Duer, 
341;  Piper  «.  Mannv,  21  Wend.  282;  Hulett  v.  Swift,  33  N.  Y.  571; 
Wilkins  V.  Earle,  44  N.  Y.  172 ;  Houser  v.  Tally,  62  Penn.  St.  92  ; 
Rockwell  V.  Proctor,  39  Ga.  105.  But  this  subject  is  much  regulated  by 
statute. 


332  LAW  OF  TORTS.  [Paet  III. 

does  not  turn  upon  the  proof  of  negligence  in  the  ordinary 
sense,  the  subject  need  not  be  here  pursued. 

678.  It  is  proper  however  to  mark  the  fact  in  this  connec- 
tion that  a  question  of  contributory  negligence  ^  may  arise 
in  considering  cases  of  innkeeper  and  guest,  as  well  as  in 
other  cases.  If  the  negligence  of  the  guest  occasion  the  loss 
in  such  a  way  that  it  would  not  have  happened  if  the  guest 
had  exercised  the  usual  care  that  a  prudent  man  might  reason- 
ably be  expected  to  have  taken  under  the  circumstances,  the 
innkeeper  is  not  liable.^ 

§  4.   Of  Bailor  and  Bailee. 

679.  So   much   of   the   subject   of   bailment   as  relates  to 

breaches  of  duty  by  common  carriers  may  be  dismissed  with 

a  brief  word.     The  liability  of  a  common  carrier 
N^6GrIi&r6UC6. 

is  similar  to  that  of  an  innkeeper,  and  does  not 

turn  upon  the  question  of   negligence,  the   subject   of   the 

present  chapter.     And  there  are   other  cases  in  which  the 

bailor   of   an   article    for   special    use,   as  a  '  job-master '  of 

carriages,  while  not  for  all  purposes  an  insurer,  is  still  liable, 

at  least  in  England,  for  loss  happening  without  negligence 

in  the  ordinary  sense.^     These  too  fall  without  the  present 

subject. 

680.  It  was  long  considered  a  settled  doctrine  of  the 
English  law  that  the  duty  of  bailees  was  to  be  distributed 
Degrees  of  under  three  heads,  having  reference  respectively 
negligence.  to  the  nature  of  the  bailment;  to  wit,  (1)  the 
duty  to  observe  very  great  care,  (2)  the  duty  to  observe 
ordinary  care,  and  (3)  the  duty  to  observe  slight  care  only. 
Conversely  therefore  the  bailee  was  deemed  to  be  liable  for 

1  Post,  §  12. 

2  Cashill  V.  Wright,  6  El.  &  B.  891 ;  Oppenheim  v.  White  Lion 
Hotel  Co.,  L.  R.  6  C.  P.  515. 

3  See  e.  g.  Ilynian  v.  Nye,  6  Q.  B.  D.  685.  The  liability  of  one 
■whose  business  is  to  let  carriages  is  here  put  upon  the  footing  of  coach 
proprietors  and  railway  companies.  '  He  is  an  insurer  against  all  de- 
fects which  care  and  skill  can  guard  against.'  Id.  Lindley,  J.  He  is 
not  an  insurer  against  all  defects  absolutely.     Id. 


Chap.  XVIII.  §  4.]  NEGLIGENCE.  333 

loss  sustained  by  the  bailor,  under  the  first  head,  if  the  bailee 
were  guilty  of  slight  negligence ;  under  the  second  head,  if 
he  were  guilty  of  'ordinary  negligence,'  or  ratlier  of  negli- 
gence of  an  intermediate  grade ;  and,  under  the  third  head, 
if  he  were  guilty  of  gross  negligence.^ 

681.  The  application  of  these  three  degrees  of  negligence 
was  thus  explained:  If  the  bailment  were  gratuitous,  by 
the  bailor,  that  is,  for  the  sole  benefit  of  the  bailee,  the 
bailee  was  deemed  to  be  liable  for  loss  or  damage  to  the 
subject  of  the  bailment  occasioned  even  by  slight  negligence 
on  liis  part.  If  the  bailment  were  for  hire,  that  is,  for  the 
mutual  benefit  of  the  bailor  and  the  bailee,  he  was  deemed 
to  be  liable  for  the  consequences  of  negligence  of  an  inter- 
mediate grade  only.  If  the  bailment  were  without  benefit  to 
the  bailee,  that  is,  if  the  bailor  had  requested  the  bailee  to 
take  care  of  his,  the  former's,  goods  without  reward,  the 
bailee  was  deemed  to  be  liable  for  the  result  of  gross 
negligence  only.^ 

682.  This  doctrine  arose  from  a  misconception  apparently 
of  the  Roman  law,  the  doctrines  of  which  were  resorted  to 
in  order  to  assist  in  the  solution  of  a  question    ^^^g^^  ^^^ 
which  arose  in  Enefland  in  the  eighteenth  cen-    misunder- 
tury.3     But  it  remained  in  the  English  law  un- 
challenged for  so  long  a  time  that  it  has  not  been  readily 
abandoned,  and  it  may  be  still  considered  as  retaining  some 
faint    vitality   in    England   and    in    various    parts    of    the 
United  States. 

683.  The  tendency  of  authority  for  a  considerable  time  has 
been  to  break  away  from  this  division  of  negligence,  and  to 
accept  substantially  what  seems  to  have  been  the    Tendency  of 
true  doctrine  of  the  Roman  law  in  regard  to  bail-    authority, 
ments,  as  well  as  in  relation  to  other  subjects  covered  by  the 
title   Negligence.     The   effect  is   to   make   the  criterion  of 

1  Coggs  V.  Bernard,  2  Ld.  Kaym.  909 ;  1  Smith's  L.  C.  188,  7th  ed. 

*  Id. 

8  Coggs  V.  Bernard,  supra.  Lord  Holt  took  his  Roman  law  mainly 
from  the  niediseval  jurists,  or  glossarists.  Wharton,  Negligence,  §  57  et 
seq. ;  Smith,  Negligence,  11  et  seq.,  2d  ed. 


334  LAW   OF   TORTS.  [Part  III. 

liability  to  depend  upon  the  consideration  already  adverted 
to,  whether  the  party  complained  of  conducted  himself  in  the 
particular  situation  as  a  man  of  prudence  or  carefulness  or 
skill,  of  the  same  business,  would  have  conducted  himself, 
or  as  prudent  or  careful  or  skilful  men,  of  the  same  business, 
generally  do  conduct  themselves  in  the  like  situation. ^ 

684.  This  criterion  indeed  will  often  if  not  generally  be 
found  to  be  the  real  test  applied  in  those  cases  in  which  the 
old  terms  are  used.  For  example  :  The  defendant,  a  bailee 
of  money  to  keep  without  reward,  gives  the  following  account 
of  himself :  He  was  a  coffee-house  keeper,  and  had  placed  the 
money  in  question  in  his  cash-box  in  the  tap-room,  which  had 
a  bar  in  it,  and  was  open  on  Sunday ;  and  on  a  Sunday  the 
cash-box  was  stolen.  The  defendant's  liability  turns  upon 
the  question  whether  he  has  taken  such  care  of  the  plaintiff's 
money  as  a  reasonable  man  would  ordinarily  take  of  his  own ; 
if  not,  he  is  deemed  to  be  guilty  of  '  gross  negligence  '  and 
liable  for  the  loss.^  Again  :  The  defendants  receive  a  deposit 
of  bonds  from  a  stranger,  S,  to  be  kept  without  reward.  Sub- 
sequently another  stranger  calls  for  and  gets  the  bonds,  repre- 
senting himself  to  be  S,  the  depositor.     The  judge  instructs 

1  As  indicating  the  tendency  to  discard  the  old  theory  of  the  three 
degrees  of  negligence,  see  Wilson  v.  Brett,  11  M.  &  W.  113;  Hiuton  v. 
Dibdin,  2  Q.  B.  646;  GriU  v.  General  Collier  Co.,  L.  R.  1  C  P.  600; 
Beall  V.  South  Devon  Ry.  Co.,  3  H.  &  C.  837 ;  Giblin  v.  McMullen,  L  R. 
2  P.  C.  317,  328 ;  The  New  World,  16  How.  469 ;  Milwaukee  Ry.  Co. 
V.  Arms,  91  U.  S.  489,  494;  Cass  v.  Boston  &  L.  R.  Co.,  14  Allen,  448; 
Lane  v.  Boston  &  A.  R.  Co.,  112  Mass.  455  ;  Briggs  v.  Taylor,  28  Vt. 
180. 

In  the  Roman  law  there  were  two  branches  (rather  than  degrees)  of 
negligence,  expressed  respectively  by  the  terms  '  culpa  levis '  and 
'  culpa  lata. '  The  former  was  the  absence  of  the  diligence  of  a  good 
man  of  affairs  ('  diligentia  boni  patrisfamilias  ')  ;  the  latter  the  failure 
to  exercise  those  mental  faculties  which  all  men  habitually  exercise 
('non  intellegere  quod  omnes  intellegunt ').  The  two  ideas  together 
answer  pretty  nearly  to  our  prudent,  careful,  diligent,  or  skilful  man  in 
the  particular  situation. 

^  Doorman  v.  Jenkins,  2  Ad.  &  E.  256.  The  question,  it  will  be 
seen,  was  not  whether  the  defendant  had  taken  the  same  care  of  the 
money  that  he  took  of  his  own. 


Chap.  XVIII.  §  4.]  NEGLIGENCE.  335 

the  jury  that,  if  the  defendants  are  guilty  of  want  of  '  ordi- 
nary care '  under  all  the  circumstances,  they  are  liable,  other- 
wise not.  The  instruction  is  correct,  being  equivalent  to 
a  ruling  that  the  defendants  are  liable  for  gross  negligence 
only.^  Again :  The  defendants  receive  a  deposit  of  debent- 
ures to  be  kept  without  reward,  and  the  cashier  of  the  bank 
fraudulently  abstracts  the  same  and  makes  away  with  them. 
The  defendants  are  liable  if  they  have  failed  to  exercise 
'  ordinary  care,'  which  means  a  failure  to  exercise  that  ordi- 
nary diligence  which  a  reasonably  prudent  man  takes  of  his 
own  property  of  the  like  description.^ 

685.  The  foregoing  are  examples  of  liability  in  cases  of 
bailment  without  reward ;  but  the  same  principles  govern 
bailments  for  hire.  For  example :  The  defendants.  Bailment  for 
warehousemen  for  hire,  lose  by  theft  the  plain-  ^^^^• 
tiff's  property,  while  the  same  is  in  their  keeping.  They 
have  exercised  the  care  usually  exercised  in  the  vicinity  by 
other  like  warehousemen.  They  are  not  liable,  having  exer- 
cised '  ordinary  care.'  ^  Again :  The  defendants,  warehouse- 
men in  a  large  city,  receive  from  the  plaintiffs  for  reward 
a  large  quantity  of  salt  in  barrels,  which  they  store  in  a 
loose  frame  warehouse,  situated  in  an  alley,  back  of  their 
business  house.  Of  the  whole  amount  about  two  hundred 
and  forty  barrels  are  stolen ;  and  it  is  afterwards  discovered 
that  the  theft  was  going  on  at  intervals  for  a  month.  It  was 
effected  by  entering  through  an  opening  in  the  side  of  the 
building,  a  plank  there  being  off,  and  then  opening  the  alley 
door  and  rolling  out  the  barrels.  Drays  were  thus  loaded 
early  in  the  morning,  sometimes  before  sunrise,  sometimes  a 
little  after  ;  the  defendants  having  no  watchman  there.  The 
defendants  are  liable,  because  they  failed  to  exercise  '  ordi- 

1  Lancester  Co.  Bank  v.  Smith,  62  Penn.  St.  47.     See  also  Foster  u. 
Essex  Bank,  17  Mass.  479,  486. 

2  Giblin  v.  McMullen,  L.  R.  2  P.  C.  317;  Fulton  v.  Alexander,  21 
Texas,  148. 

8  Cass  V.  Boston  &  L.  R.  Co.,  14  Allen,  448.     See  Lane  v.  Boston  & 
A.  R.  Co.,  112  Mass.  455. 


336  LAW  OF  TORTS.  [Part  HL 

nary  care  or  diligence  ; '  though  it  appears  to  be  usual  in  the 
particular  city  to  pile  such  barrels  in  open  sheds,  or  on  vacant 
lots,  or  on  the  sidewalk,  or  occasionally  in  warehouses  such 
as  the  one  in  question,  —  some  supervision  or  examination  of 
the  premises  being  reasonably  required  in  the  course  of  a 
month.^ 

686.  The  result  therefore  is,  that  the  terms  '  gross  negli- 
gence '  and  '  negligence  '  are,  with  regard  to  goods  bailed, 
'  Gross  negli-  now  used  to  prescribe  liability  where  the  defend- 
gence.'  ^nt  or  his  servants  have  not  taken  the  same  care 
of  the  property  intrusted  to  them  as  a  prudent  man  would 
have  taken  of  his  own  in  the  same  situation.^  Or  as  it  has 
recently  been  laid  down  by  judicial  authority :  For  all  practi- 
cal purposes  the  rule  may  be  stated  to  be,  that  the  failure 
to  exercise  reasonable  care,  skill,  and  diligence  is  '  gross 
negligence.'  What  is  reasonable,  varies  in  case  of  a  gratui- 
tous bailee  and  that  of  a  bailee  for  hire.  From  the  former 
are  reasonably  expected  such  care  and  diligence  as  persons 
ordinarily  use  (that  is,  careful  persons)  in  their  own  affairs, 
and  such  skill  as  the  bailee  has.  From  the  latter  are  reason- 
ably expected  such  care  and  diligence  as  are  exercised  in  the 
ordinary  and  proper  course  of  similar  business,  and  such 
skill  as  the  bailee  ought  to  have ;  namely,  the  skill  usual 
and  requisite  in  the  business  for  which  he  receives  payment.^ 

687.  On  the  other  hand,  in  regard  to  the  converse  question 
of  the  duty  of  the  bailor  to  the  bailee  (which  does  not  concern 
Gratuitous  the  dogma  of  the  three  degrees  of  negligence),  it 
bailor.  jg  clear  that  a  gratuitous  bailor  stands  in  a  differ- 
ent position  from  a  bailor  for  reward.  A  bailor  for  a  price 
may  well  be  required  to  look  to  the  safety  of  the  bailee ;  but 
a  man  cannot  be  required  to  enlarge  his  gift^  as  he  would  be 
if  he  were  to  be  held  liable  for  defects  in  the  chattel  by  which 

1  Chenowith  v.  Dickinson,  8  B.  Mon.  156. 

2  Briggs  V.  Taylor,  28  Vt.  180.  See  also  Duif  v.  Budd,  3  Bred.  &  B. 
177;  Riley  v.  Home,  5  Bing.  217 ;  Batson  v.  Donovan,  4  B.  &  Aid,  21. 

3  Beal  V.  South  Devon  Ry.  Co.,  3  H.  &  C.  337,  Exch.  Ch.,  Cromp- 
ton,  J.,  speaking  for  the  court. 


Chap.  XVIII.  §  5.]  NEGLIGENCE.  337 

the  bailee  sustained  damage,  for  to  make  him  liable  would 
virtually  be  to  say  that  he  must  put  the  chattel  in  good  con- 
dition before  lending  it.  It  would  require  some  assurance 
in  a  gratuitous  bailee  to  say  to  the  bailor,  '  I  want  your  cart 
to  fetch  my  turnips  to  market,  but  you  must  put  it  in  perfect 
order  if  you  let  me  take  it.'  For  'passive'  negligence,  i.  e. 
a  want  of  knowledge  of  defects  which  by  care  or  diligence  he 
might  have  known,  the  bailor  would  not  be  liable.^ 

688.  The  contrary  would  be  true  if  the  bailor's  negligence 
was  'active,'  that  is,  if  he  knew  of  the  danger  and  did  not 
notify  the  bailee.^  It  is  then  the  duty  of  the  bailor,  whether 
the  bailment  be  for  reward  or  not,  to  notify  the  bailee  of 
danger  if  he  knows  there  is  danger;  as  where  a  person  em- 
ploys another  to  carry  an  article  which  from  its  dangerous 
nature  requires  more  than  ordinary  care ;  in  such  a  case  the 
bailor  must  give  reasonable  notice  of  the  nature  of  the  article, 
otherwise  he  will  be  liable  for  the  natural  consequences  of 
the  neglect.^  For  example :  The  defendant  delivers  a  car- 
boy of  nitric  acid  to  the  plaintiff,  servant  of  a  Croydon  carrier, 
to  be  taken  to  Croydon,  without  notifying  him  of  the  nature 
of  the  article  ;  and  there  is  nothing  in  its  appearance  to  indi- 
cate its  nature.  While  he  is  carrying  it,  the  carboy  bursts 
from  some  unexplained  cause,  and  the  plaintiff  is  injured. 
The  defendant  is  liable.* 

§  5.   Of  Bailment  for  Service. 

689.  Thus  far  of  bailment  for  custody  (locatio  custodiae), 
or  for  hire  (locatio  rei),  or  the  like.  The  bailment  may 
require  the  performance  of  services  upon  chattels  ^  ,. 

,  .  .  ,  T  TT-     Ordinary  care, 

(locatio  opens) ;  but  the  rule  with  regard  to  dili- 
gence  is   still   the  same.     The    bailee  is    bound  to  exercise 
ordinary  care  ;  to  wit,  the  care  of  a  prudent  man  of  the  same 

1  See  Indermauer  v.  Dames,  L.  R.  1  C.  P.  274  (s.  c.  L.  R.  2  C.  P.  318)  ; 
Cases,  482,  489.     The  text  applies  equally  to  gifts.     Id. 

2  Id. 

3  Willes,  J.,  in  Farrant  v.  Barnes,  11  C.  B.  n.  s.  553,  .564. 

*  Farrant  v.  Barnes,  supra.     See  Brass  v.  Maitland,  6  El.  &  B.  470. 

22 


338  LAW  OF  TORTS.  [Part  III. 

occupation,  and  under  the  same  circumstances.  He  is  also 
bound  to  exercise  a  fair  average  degree  of  skill  in  relation 
to  the  business  which  he  undertakes ;  to  do  his  work  in  a 
workmanlike  manner ;  and  to  be  possessed  of  sufficient  skill 
to  execute  it.  He  will  therefore  be  liable,  jDrima  facie,  if  he 
should  either  make  an  engagement  without  sufficient  skill 
to  execute  it,  or  if,  possessing  the  adequate  skill,  he  should 
not  exercise  it.  For  example :  The  defendant  hires  a  horse 
of  the  plaintiff  which  becomes  slightly  sick.  The  defendant, 
not  being  a  farrier,  thereupon  prescribes  improperly  for  the 
horse,  and  the  medicine  kills  it.  A  farrier  being  near  at 
hand  at  the  time,  this  is  a  breach  of  duty  to  the  plaintiff.^ 
Again :  The  defendant,  a  builder  of  houses,  undertakes  for 
the  plaintiff  to  rebuild  a  good  and  substantial  front  to  his 
house,  but  he  builds  the  same  so  out  of  perpendicular  that  it 
must  be  taken  down.  The  defendant  is  liable  in  an  action 
for  negfliofence.^ 

690.  The  degree  of  skill  and  care  required  rises  in  propor- 
tion to  the  value,  the  delicacy,  and  the  difficulty  of  the 
Nature  of  the  operation.  A  workman  employed  to  repair  the 
work.  works  of  a  very  delicate  instrument  would  be 
expected  to  exert  more  care  and  skill  than  would  be  required 
about  an  ordinary  unlertaking.^  The  criterion  of  liability 
however  still  remains  the  same ;  if  all  things  are  done  by 
the  workman  which  a  careful  and  skilful  workman  in  the 
same  situation  and  business  would  do,  he  will  be  exonerated 
from  liability  though  he  break  the  instrument.* 

691.  It  should  be  observed  however  with  regard  to  cases 
requiring  the  exercise  of  skill,  that  a  bailee  is  not  to  be 
required  to  possess  extraordinary  skill,  such  as  is  possessed 
by  but  few  persons  only  in  the  particular,  business,  but 
only  a  fair  average,  or  ordinary,  degree  of  skill ;  unless 
indeed  he  engage  to  possess  extraordinar}'  ability.  In  the 
absence  of  agreement  or  false  representation,  reasonable  skill 

1  Dean  v.  Keate,  .3  Campb.  4. 

•2  Farnsworth  v.  Garrard,  1  Campb.  38. 

3  Story,  Bailments,  §  432.  •*  Id. 


Chap.  XVIII.  §  6.]  NEGLIGENCE.  339 

constitutes  the  measure  of  the  engagement  of  the  workman 
in  regard  to  the  thing  undertaken. ^ 

692.  On  the  other  hand,  a  bailee  employed  to  do  work  un- 
familiar to  him  is  not  liable,  it  seems,  for  failing  to  possess 
the  requisite  skill  for  the  work,  if  he  has  not  held  Employment 
himself   out  as  possessing  such  skill.     It  is  the  of  unskilled 
bailor's  fault  if  he  intrust  a  work  requiring  the 

exercise  of  skill  to  one  whom  he  knows  to  be  without  it. 
For  example :  The  defendant,  a  matter,  is  employed  by  the 
plaintiff,  with  notice,  to  embroider  a  fine  carpet,  and  the 
defendant,  from  want  of  skill,  spoils  the  materials  put  into 
his  hands  by  the  plaintiff  for  the  purpose.  This  is  no 
breach  of  duty,  the  defendant  not  having  represented  himself 
competent  for  such  work.^ 

693.  It  is  further  to  be  observed  that  if  the  loss  or  bad 
execution  be  not  properly  attributable  to  the  fault  or  unskil- 
fulness  of  the  workman,  or  of  his  servants,  but  arise  from  an 
inherent  defect  in  the  thing  upon  which  the  work  is  done, 
the  bailor,  having  furnished  the  materials,  cannot  treat  the 
bailee  as  guilty  of  negligence.^  But  if  the  materials  were 
furnished  by  the  bailee,  and  the  result  were  a  failure  to 
perform  the  contract  altogether,  or  a  failure  to  perform  it 
within  the  time  agreed  upon,  the  bailee  would  be  liable ; 
unless  perhaps  the  materials  required  by  the  bailor  were 
such  as  he  (the  bailee)  was  not  familiar  with,  and  he  had 
exercised  such  skill  as  he  possessed  in  the  management  of 
them.* 

§  6.   Of  Professional  Services. 

694.  The  only  difference  between  the  case  presented  in  the 
present  section  and  that  in  the  preceding  is  that  there  is  now 
no  bailment  of  goods  to  be  wrought  upon.     The  jteasonabie 
rules  of  law  with  regard  to  the  duty  of  the  person  care  and  diii- 
emplo^^ed  are  not  materially  different  from  those  ^®°°®* 

1  Story,  Bailments,  §  433.  2  id.  §  435. 

8  Id.  §  428  a. 

*  In  the  latter  case  the  bailor  might  himself  be  liable  to  the  bailee, 
as  in  case  of  injury  from  dangerous  materials  ordered  by  the  bailor. 


340  LAW  OF  TORTS.  [Paet  III. 

above  presented.  To  render  a  professional  man  liable  for 
neoiicrence,  it  is  not  enoug^h  that  there  has  been  a  less  deg'ree 
of  skill  than  some  other  professional  men  might  have  shown. 
Extraordinary  skill  is  not  required  unless  professed  or  con- 
tracted for ;  a  fair  average  degree  of  skill  is  all  that  can  be 
insisted  on.  Or,  as  it  has  been  laid  down,  a  person  who 
enters  a  learned  profession  undertakes  to  bring  to  the  exer- 
cise of  his  business  nothing  more  than  a  reasonable  degree 
of  skill  and  care.  He  does  not  undertake,  if  an  attorney, 
that  he  will  gain  a  cause  at  all  events,  or,  if  a  physician,  that 
he  will  effect  a  cure.^ 

695.  For  special  illustration  of  the  application  of  this  doc- 
trine, the  nature  of  the  liability  of  lawyers  and  of  doctors  of 
medicine  for  negligence  may  be  taken. 

696.  Every  client  has  a  right  to  expect  the  exercise,  on  the 
part  of  his  attorney,^  of  care  and  diligence  in  the  performance 

of  the  business  intrusted  to  him,  and  of  a  fair 
average  degree  of  professional  skill  and  knowl- 
edge ;  and  if  an  attorney  has  not  as  much  of  these  qualities 
as  he  ought  to  possess,  or  if,  having  them,  he  neglects  to  use 
them,  the  law  makes  him  liable,  prima  facie,  for  any  loss 
which  may  have  been  sustained  thereby  by  his  client.^ 

697.  Hence  an  attorney  possessed  of  a  reasonable  amount 
of  information  and  skill,  according  to  the  duties  which  he 
undertakes  to  perform,  and  exercising  what  he  possesses  with 
reasonable  care  and  diligence  in  the  affairs  of  his  client, 
is  not  liable  for  errors  in  judgment,  whether  in  matters  of 
law  or  of  discretion,  unless  he  profess  to  have  a  high  order 
of  skill. 

698.  It  is  clear  however  that,  when  an  injurj^  has  been 
sustained  which  could  not  have  happened  except  from  want 
of  reasonable  skill  and  diligence  on  the  part  of  the  attorney, 

1  Lamphier  v.  Phipos,  8  Car.  &  P.  475,  Tindal,  C.  J.  ;  Ilart  v.  Frame, 
6  Clark  &  F.  193,  210;  Graham  v.  Gautier,  21  Texas,  111;  DashieU  v. 
Griffith,  84  Md.  36.3. 

^  '  Attorney  '  here  =  lawyer  of  any  grade  or  name. 

•  Saunders,  Negligence,  155. 


Chap.  XVIII.  §  6.]  NEGLIGENCE.  341 

the  law  will  hold  him  liable.  To  take  proceedings  upon  a 
wrong  statute,  where  there  is  no  question  of  doubtful  con- 
struction involved,  would  be  evidence  of  negligence  under 
this  rule.  For  example :  The  defendant,  an  attorney,  is 
employed  to  take  statutory  proceedings  on  behalf  of  the 
plaintiffs  against  their  apprentices  for  misconduct.  The 
defendant  proceeds  upon  a  section  of  the  statute  relating  to 
servants  and  not  to  apprentices.  This  is  deemed  such  a  want 
of  skill  or  diligence  as  to  render  the  attorney  liable  to  repay 
to  the  plaintiffs  the  damages  and  costs  incurred  by  his 
mistake.^ 

699.  If  an  attorney  has  doubt  in  regard  to  the  legal  effect 
of  an  instrument  in  which  his  client  is  concerned,  and  sub- 
mits the  question  to  counsel  for  advice  on  which  to  act,  he 
must  state  the  facts  correctly  and  with  fulness.  If,  instead 
of  laying  the  facts  of  the  case  fully  before  counsel,  he 
attempts  to  state  inferences  from  the  facts,  he  acts  at  his 
peril.  The  counsellor  should  be  permitted  to  draw  his  own 
inferences.  For  example :  The  defendant,  a  lawyer  employed 
by  the  plaintiff,  seeking  counsel  of  another  lawyer,  misstates 
the  legal  effect  of  certain  deeds  not  accompanying  the  case, 
whereby  he  (the  defendant)  receives  and  acts  upon  incorrect 
advice,  to  the  damage  of  the  plaintiff.  This  is  evidence  of 
negligence.^ 

700.  In  the  like  exercise  of  due  care  and  skill,  an  attorney 
employed  to  investigate  the  title  to  an  estate,  or  to  seek  out 
a  good  investment  and  obtain  security  for  money  advanced, 
must  examine  the  title  to  and  extent  of  the  security  offered ; 
and  even  then,  if  the  title  prove  obviously  defective,  or  the 
security  prove  evidently  bad  or  insufficient,  he  will  be  liable.^ 

701.  The  authorities,  finally,  appear  to  establish  the  rule 
that  an  attorney  is  liable  for  the  consequences  of  ignorance  or 
non-observance  of  the  rules  of  practice  of  court,  for  the  want 
of  care  in  the  preparation  of  a  cause  for  trial,  or  of  attendance 

1  Hart  V.  Frame,  6  Clark  &  F.  193. 

2  Ireson  v.  Pearman,  3  B.  &  C.  799. 

8  Knight  V.  Quarles,  4  Moore,  532 ;  Whitehead  v.  Greetham,  10  Moore, 
183 ;  Donaldson  v.  Haldane,  7  Clark  &  F.  762. 


342  LAW   OF  TORTS.  [Part  III. 

thereon  with  his  witnesses,  and  for  the  mismanagement  of  so 
mucli  of  the  conduct  of  the  cause  as  is  usually  allotted  to  his 
department  of  the  profession.  On  the  other  hand,  he  is  not 
answerable  for  error  in  judgment  upon  points  of  new  occur- 
rence, or  of  nice  or  doubtful  construction,  or  of  such  as  are 
usually  submitted  to  one  in  the  highest  walks  of  the  legal 
profession.^ 

702.  To  render  a  doctor  of  medicine  liable  for  negligence, 
there  must  likewise  appear  to  have  been  a  failure  to  exercise 
Doctors  of  such  diligence  or  skill  as  a  prudent  practitioner 
medicine.  Qf  fr^jp  ability  would  have  exercised  under  the 
same  circumstances. ^  The  degree  of  diligence  required  will 
be  proportionate  to  the  nature  of  the  case;  and,  in  some 
cases,  nothing  short  of  the  highest  degree  of  diligence  can 
satisfy  the  law. 

703.  As  regards  the  skill  to  be  exercised  however,  nothing 
more  than  a  reasonable  degree  can  be  insisted  upon ;  the  law 
does  not  require  the  exercise  of  the  highest  medical  ability,^ 
unless  the  party  has  held  himself  out  as  possessed  of  it  or  has 
contracted  to  give  it.  For  example  :  The  defendant,  a  physi- 
cian, is  retained  as  accoucheur  to  attend  the  plaintiff's  wife, 
and  the  plaintiff  alleges  that  he  failed  to  use  due  and  proper 
care  and  skill  in  the  treatment  of  the  lady,  whereby  she  was 
injured.  The  judge  instructs  the  jury  that  it  is  not  enough 
to  make  the  defendant  liable  that  some  medical  men,  of  far 
greater  experience  or  ability,  might  have  used  a  greater  degree 
of  skill,  nor  that  even  he  might  possibly  have  used  some 
greater  degree  of  care.  The  question  to  be  decided  is, 
whether  there  has  been  a  want  of  competent  care  and  skill  to 
such  an  extent  as  to  lead  to  the  bad  result.*  Again:  The 
defendant,  a  surgeon,  is  employed  by  the  plaintiff  to  treat  an 
injury  to  his  hand  and  wrist;  and  the  plaintiff  alleges  that 
he  conducted  himself  in  the  business  in  such  a  careless,  negli- 

1  Godefroy  v.  Dalton,  6  Bing.  460. 

2  Dashiell  v.  Griffith,  84  Md.  363. 

'  Graham  v.  Gautier,  21  Texas,  111. 
*  Rich  V.  Pierpont,  3  Fost.  &  F.  35. 


Chap.  XVIII.  §  7.]  NEGLIGENCE.  343 

gent,  and  unskilful  manner,  that  the  plaintiff's  hand  became 
withered,  and  was  likely  to  become  useless.  The  judge  in- 
structs the  jury  that  the  question  for  them  to  decide  is, 
whether  they  are  satisfied  that  the  injury  sustained  is  attrib- 
utable to  the  want  of  a  reasonable  and  proper  degree  of  care 
and  skill  in  the  defendant's  treatment.  The  defendant's 
business  did  not  require  him  to  undertake  to  perform  a  cure, 
nor  to  use  the  highest  possible  degree  of  skill.  ^ 

704.  If  the  patient,  by  refusing  to  adopt  the  remedies  of 
the  physician,  frustrate  the  latter's  endeavors,  or  if  he  aggra- 
vate the  case  by  his  own  misconduct,  he,  of  course,  cannot 
hold  the  physician  liable  for  the  consequences  attributable  to 
such  action.  Still  if,  after  such  misconduct,  the  physician 
continue  to  treat  the  patient,  he  will  be  liable  for  any  injury 
sustained  by  reason  of  his  own  negligence  in  such  subsequent 
treatment. 2  Want  of  consideration  is  by  the  better  rule  no 
defence.  3 

§  7.    Of  Telegraph  Companies. 

705.  Telegraph  companies  are  bound  to   exercise   reason- 
able diligence  and  care  in  the  transmission  of  messages,  which 
in  their  business  imports  a  very  high  degree  of 
diligence  and  care,*  and  are  liable  to  the  senders      gence  and 
for  any  failure  to  conform  to  the  requirements  of      *'^^^" 

this  duty.^  They  are  not  insurers  of  the  correct  transmis- 
sion of  despatches,^  but  they  are  presumptively  liable  for  fail- 
ure to  transmit  a  message  correctly.^ 

1  Lamphier  v.  Phipos,  8  Car.  &  P.  475.  These  two  cases,  though  at 
nisi  prius,  are  often  referred  to  as  authority.  Like  the  second  is  Wood 
V.  Clapp,  4  Sneed,  65. 

2  Hibbard  v.  Thompson,  109  Mass.  2-S6  ;  Wharton,  Negligence,  §  737. 
8  Gill  V.  Middleton,  105  Mass.  47!).     But  see  Ritchey  v.  West,  23  111. 

385,  proceeding  upon  the  old  notion  of  bailment  without  reward. 

*  Jones  V.  Western  Union  Tel.  Co.,  101  Tenn.  442. 

«  Western  Unioti  Tel.  Co.  v.  Chamblee,  122  Ala.  428,  434. 

•  Western  Union  Tel.  Co.  v.  Chamblee,  supra ;  Western  Union  Tel. 
Co.  V.  Carew,  15  Mich.  525,  533;  Breese  v.  United  States  Tel.  Co.,  48 
N.  Y.  132  ;  Playford  v.  United  Kingdom  Tel.  Co.,  L.  R.  4  Q.  B.  706,  710. 

'  Western  Union  Tel.  Co.  v.  Chamblee,  supra ;  Pearsall  v.  Western 
Union  Tel.  Co.,  124  N.  Y.  256. 


344  LAW  OF  TORTS.  [Part  III. 

706.  They  are  indeed  presumptively  bound  to  deliver  the 
precise  message  given  them  for  transmission,  when  it  is  legi- 
bly written.!  P'or  a  failure  to  do  so  they  are  liable,  in  the 
absence,  at  least,  of  a  rule  requiring  the  message  to  be  re- 
peated by  the  receiver,  and  this  too  even  in  the  face  of  a 
notice  to  the  contrary;  unless  the  error  was  caused  by  the 
condition  of  the  atmosphere,  or  by  some  other  obstacle,  with- 
out fault  on  the  part  of  the  telegraph  company.  For  exam- 
ple :  The  defendants  receive  a  message  from  the  plaintiffs  for 
transmission  at  night,  ordering  a  cargo  of  corn  at  a  price 
named  by  the  owner.  The  message  is  written  upon  a  blank 
of  the  defendants,  at  the  top  of  which  is  a  declaration  that 
the  defendants  are  not  to  be  liable  for  mistakes,  or  delays, 
or  non-delivery  beyond  the  sum  paid  for  the  message.  The 
message  is  sent;  but,  by  reason  of  the  defendants'  negli- 
gence, it  is  not  correctly  delivered,  and  the  plaintiffs  fail  to 
obtain  the  corn  at  the  price  named,  the  grain  having  directly 
advanced  in  price.  The  defendants  are  liable,  the  notice 
being  unreason  able.  ^ 

707.  A  condition  that  the  telegraph  company  shall  not  be 
liable  to  the  sender  of  a  despatch  for  a  mistake  in  it,  unless 
the  message  shall  be  repeated  by  the  receiver,  is  however 
held  by  many,  but  not  by  all,  authorities  to  be  reasonable  and 
valid,  though  referred  to  as  among  the  conditions  on  the 
back  of  the  blank  used  by  the  sender,  and  though  it  be  not 
read.^  And  the  same  is  true  of  a  condition  that  the  tele- 
graph company  shall  not  be  liable  for  mistakes  occurring  on 
other  lines,  in  the  course  of  transmitting  a  message,  though 
the  first  company  receive  pay  for  the  entire  transmission.* 
But  it  is  held  that  a  condition  that  the  company  shall  not  be 

1  Cases  just  cited. 

'^  See  True  v.  International  Tel.  Co.,  60  Maine,  9.  The  message  was 
not  delivered  at  all  in  this  case. 

3  Breese  v.  United  States  Tel.  Co.,  48  N.  Y.  132;  Wolf  v.  Western 
Union  Teh  Co.,  62  Penn.  St.  83;  Ellis  v.  American  Tel.  Co.,  13  Allen, 
226;  Western  Union  Tel.  Co.  r.  Carew,  15  ^lich.  525.  Contra,  Western 
Union  Tel.  Co.  v.  Chamblee,  122  Ala.  428;  25  Am.  &  Eng.  Encycl.  Law, 
791,  792,  and  cases  cited. 

*  Western  Union  Tel.  Co.  v.  Carew,  supra. 


Chap.  XVIII.  §  8.]  NEGLIGENCE.  345 

liable  for  mistakes  or  delays  in  transmitting  despatches 
applies  merely  to  the  transmission,  and  not  to  delays  in 
delivering  them.^ 

708.  It  is  proper,  in  this  connection,  to  observe  that,  by 
the  American  law,  the  telegraph  company  is  also  liable  to 
the  person  to  whom  the  message  is  transmitted,  Liability  to 
upon  delivery  thereof,  in  case  of  an  error  in  *^^  receiver, 
transmission  attributable  to  the  fault  of  the  company,  when 
the  error  is  attended  with  damage  to  the  person  receiving  it.^ 
The  rule  is  otherwise  in  England. ^  But  the  telegraph  com- 
pany is  (probably)  under  no  liability  to  the  person  to  whom  a 
message  is  addressed  for  a  failure,  however  negligent,  to  de- 
liver, unless  the  sender  was  his  agent. 

§  8.    Of  the  Duty  of  Agents,  Servants,  Trustees, 

AND  THE  Like. 

709.  The  test  of  the  liability  of  an  agent  to  his  principal  for 
damage  done  by  reason  of   alleged   negligence  is,   speaking 
generally,  the  conduct  of  a  diligent  or  careful  or      -j.j. 
skilful  agent  in  the  like  situation.     If  the  agent's      care,  and' 
action  conform  to  this  standard,  he  will  be  exempt      ^ 

from  liability;  otherwise  not.  But  it  is  important  to  look 
into  this  rule  somewhat. 

710.  In  accordance  with   the  general  rule,  it  is  held  not 

1  Bryant  v.  American  Tel.  Co.,  1  Daly,  575. 

2  Wadsworth  r.  Western  Union  Tel.  Co.,  86  Tenn.  695;  Telegraph 
Co.  V.  Mellon,  96  Tenn.  66,  69  ;  New  York  &  W.  Tel.  Co.  v.  Dryburg,  35 
Penn.  St.  298 ;  Cases,  450 ;  Elwood  v.  Western  Union  Tel.  Co.,  45  N.  Y. 
549  ;  Ellis  v.  American  Tel.  Co.,  13  Allen,  226;  Gulf  Ry.  Co.  v.  Levy, 
59  Texas,  563.  See  Lyne  v.  Western  Union  Tel.  Co.,  123  N.  C.  129; 
Manly  Manuf .  Co.  v.  Western  Union  Tel.  Co.,  105  Ga.  235 ;  Hasbrouck 
V.  Western  Union  Tel.  Co.,  107  Iowa,  160.  The  ground  of  liability  is 
variously  stated.  See  L.  C.  Torts,  621  et  seq.  One  ground  taken  is  that 
the  defendants  are  to  be  treated  as  having  made  to  the  plaintiff  a  false 
representation  of  their  authority  from  the  sender  to  deliver  the  message 
May  V.  Western  Union  Tel.  Co.,  112  Mass.  90. 

3  Plaj-ford  V.  United  Kingdom  Tel.  Co.,  L.  R.  4  Q.  B.  706.  The 
English  courts  hold  that  the  only  duty  owed  by  the  telegraph  company 
is  to  the  sender  of  the  message. 


346  LAW  0¥   TORTS.  [Part  III. 

necessary,  in  order  to  fix  the  liability  of  a  factor  to  his  princi- 
pal for  damage,  to  prove  that  the  factor  has  been  guilty  of 
fraud  or  of  such  gross  negligence  as  might  carry  with  it  a 
presumption  of  fraud.  The  factor  is  required  to  act  with 
reasonable  care  and  prudence  in  his  employment,  exercising 
his  judgment  after  proper  inquiry  and  precautions.^  If  the 
exercise  of  ordinary  diligence  on  his  part  would  have  pre- 
vented the  loss,  he  will  be  liable ;  otherwise  not.  For  exam- 
ple: The  defendants,  factors,  are  directed  by  the  plaintiff, 
their  principal,  to  remit  in  bills  the  amount  of  funds  in  their 
hands.  They  do  so  in  the  bills  of  persons  who  at  the  time 
are  in  good  credit  in  the  place  in  which  the  factors  reside, 
though  not  in  the  place  of  residence  of  the  plaintiff.  If  they 
have  not  notice  of  the  latter  fact,  the  defendants  are  not 
liable ;  due  diligence  not  requiring  them  to  make  inquiry  of 
the  credit  of  the  parties  to  the  bills  at  the  place  of  residence 
of  the  principal,  when  they  are  of  good  credit  at  the  place  of 
residence  of  the  factors. ^  Again:  The  defendants,  factors, 
are  requested  to  remit  to  the  plaintiff,  their  principal,  in  bills 
'  on  some  good  house  in  New  York,'  the  plaintiff's  place  of 
residence.  They  remit  in  the  bills  of  R  and  B,  partners, 
drawn  upon  and  accepted  by  B,  the  former  residing  at  the 
place  of  residence  of  the  defendants,  the  latter  at  the  place 
of  residence  of  the  plaintiff,  to  the  defendant's  knowledge. 
R  and  B  have  houses  of  business  at  both  places.  R  (the 
resident  party)  is  in  good  credit  at  the  defendant's  place  of 
residence,  but  B  (the  New  York  party)  is  not.  The  defend- 
ants are  liable  whether  they  knew  B's  standing  or  not;  being 
bound  to  make  inquiry  in  regard  to  him.^ 

711.    Extraordinary   emergencies   may   arise   in   which  an 

agent  may,  on  grounds  of  necessity,  be  justified  in  assuming 

-,  extraordinary  powers:    and  his  acts  fairly  done 

Emergency  ''.    ^  '  .  ^  j-   i  a 

may  add  au-  under  such  circumstances  will  be  deemed  lawful.* 
thorny.  Indeed  it  seems  clear  that  the  presence  of  such 

emergencies  may  not  only  justify,  but,  in  the  light  of  pru- 

1  Story,  Agency,  §  186.  ^  Leverick  v.  Meigs,  1  Cowen,  645. 

8  Id.  *  Story,  Agency,  §  141 ;  Bailments,  §  83. 


Chap.  XVIII.  §  8.]  NEGLIGENCE.  347 

dence,  even  demand  the  resort  to  extraordinary  measures. 
Ordinarily,  it  is  proper  and  (probably)  necessary  for  an  agent 
to  deposit  the  funds  of  his  principal  in  bank ;  ^  but  if  a  hos- 
tile army  were  approaching  the  place  at  the  time,  to  the 
knowledge  of  the  agent,  prudence  would  require  him  to 
make  some  other  and  unusual  disposition  of  the  funds.^ 

712.  The  duty  of  an  agent  employed  to  procure  insurance 
is  to  take  care  that  the  policy  is  executed  so  as  to  cover  the 
contemplated  risk ;  and  to  this  end  he  is,  of  Agents  for 
course,  bound  to  possess  and  use  reasonable  skill,  insurance. 
The  agent  is  also  to  take  care  that  the  underwriters  are  in 
good  credit ;  though  it  is  enough  that  they  are  at  the  time  in 
good  repute.^ 

713.  What  is  the  proper  exercise  of  diligence  and  skill  in 
such  cases  is  sometimes  a  matter  of  great  nicety.  On  the 
one  hand,  an  agent  who  acts  bona  fide  in  effecting  insurance 
for  his  principal,  using  reasonable  skill  and  diligence,  is  not 
liable  to  be  called  to  account,  though  the  insurance  might 
possibly  have  been  procured  from  other  underwriters  on 
better  terms,  or  so  as  to  include  additional  risks,  by  which 
the  principal  might,  in  the  event  of  loss  by  those  risks,  have 
been  indemnified.*  On  the  other  hand,  an  agent  in  the  like 
case  is  bound  to  have  inserted  in  the  policy  all  the  ordinary 
risks  commonly  covered;  and  if  he  omit  to  have  them  in- 
serted when  a  reasonable  attention  to  his  business  and  the 
objects  of  the  insurance  would  have  induced  other  agents,  of 
reasonable  skill  and  diligence,  to  have  them  inserted,  he  will 
be  liable  for  negligence  in  case  of  loss.^  And  the  same  will 
be  true  if  he  negligently  or  wilfully  conceal  a  material  fact 
or  make  a  material  misrepresentation  whereby  the  policy  is 
afterwards  avoided.^ 

1  Heckerf  s  Appeal,  69  Penn.  St.  264. 

2  See  Wood  v.  Cooper,  2  Heisk.  441. 
«  Story,  Agency,  §  187. 

*  Story,  Agency,  §  191;  Moore  v.  Mourgue,  Cowp.  479. 
6  Id.  §  191 ;  Park  v.  Hammond,  6  Taunt.  495. 
«  Mayhew  v.  Forrester,  5  Taunt.  615. 


348  LAW   OF  TORTS.  [Part  IIL 

714.  If  however  it  should  appear  that,  even  if  the  duty 
expected  had  been  performed  with  proper  care,  the  principal 
could  have  derived  no  benefit  therefrom,  either  because  the 
result  would  have  been  contrary  to  express  law  or  to  public 
policy  or  to  good  morals,  the  negligence  of  the  agent  or  other 
party  acting  in  the  matter  is  not  a  breach  of  duty.^ 

715.  Servants  also  are   bound  to  take    due    care   of   their 

master's  interests,  so  far  as  intrusted  to  them.     If  a  servant 

«  be  ffuilty  of  a  failure  to  exercise  such  care  or  skill 

Due  care,  o         ./ 

skill,  and  pru-  or  prudence  as  a  diligent  servant  would  exercise 
®°°°"  under  the  circumstances,  and  the  master   suffer 

damage  thereby,  the  servant  will  be  liable  for  a  breach  of 
duty.  On  the  other  hand,  the  servant  is  not  bound  to  pre- 
vent loss  to  his  master  at  all  hazards ;  he  is  only  required  to 
use  the  care  or  skill  of  a  diligent  servant.  For  example :  The 
defendant,  a  servant,  loses  by  theft  of  another  the  goods  of 
the  plaintiff,  his  master  and  a  carrier;  but  there  is  no  proof 
of  negligence  on  the  part  of  the  defendant.  The  plaintiff 
must  bear  the  loss.^  Again:  The  defendant,  treasurer  of  the 
plaintiffs,  is  charged  with  a  failure  to  pay  over  to  the  plain- 
tiffs specific  moneyin  his  possession.  He  pleads  that  after 
receiving  the  money,  and  before  the  time  when  he  ought 
to  have  paid  it  or  could  have  paid  it  to  the  plaintiffs, 
he  was  robbed  by  violence  of  the  whole  amount  without 
any  default  or  want  of  due  care  on  his  part.  The  plea 
shows  that  the  defendant  has  not  violated  his  duty  to  the 
plaintiffs.^ 

716.  If  too  it  should  appear  that  the  principal  or  master, 
upon  a  full  knowledge  of  the  circumstances,  has  deliberately 
ratified  the  acts  or  omissions  complained  of,  though  without 
consideration,  he  will  then  be  compelled  to  overlook  the  breach 
of  duty,  and  cannot  recall  his  condonation  of  the  offence.* 

1  Story,  Agency,  §  238. 

2  Savage  v.  Walthew,  11  Mod.  135,  coram  Lord  Holt. 

8  Walker  v.  Britith  Guarantee  Assoc,  18  Q.  B.  277.     See  Doorman 
V.  Jenkins,  2  Ad.  &  E.  256,  ante,  p.  334. 
*  Story,  Agency,  §  239. 


Chap.  XVIII.  §  8.]  NEGLIGENCE.  349 

717.  A  trustee  is  not  liable  at  common  law  for  a  loss  which 
has  occurred  through   him,  if   he  exercised    ordinary   skill, 
prudence,  and  caution.^     In  considering  whether  jj      ^^  ^^^_ 
a  trustee  has  made  himself  liable  for  a  loss,  such  tees  and 

as  one  arising  by  reason  of  a  failure  to  collect  and  ^^^ 
convert  into  money  the  trust  assets,  regard  must  be  had  to 
the  nature  of  the  trust.  A  guardian  is  not  in  ordinary  cases 
held  to  such  prompt  action  in  enforcing  the  collection  of 
securities  as  an  executor,  administrator,  or  assignee  acting 
for  the  benefit  of  creditors.  The  duty  of  a  guardian  is  to 
hold  and  retain;  of  an  executor,  to  collect  and  prepare  for 
distribution.  ^  But  it  is  the  duty  of  a  trustee  to  be  active  in 
reducing  to  his  possession  any  debt  forming  part  of  the  trust 
fund;  for  the  consequences  of  neglect  he  would  be  liable.^ 

718.  An  administrator  or  executor,  or  an  assignee  of  an 
insolvent,  should  within  a  reasonable  time  make  proper  efforts 
to  convert  all  the  assets  and  securities  of  the  Reasonable 
estate  into  money  for  distribution;  failing  to  t™«- 
make  such  effort,  the  party  is  liable  for  any  loss  to  the  estate 
thereby  sustained.  For  example:  The  defendant,  an  exec- 
utor, fails  for  several  years  after  the  death  of  the  testator  to 
call  in  part  of  the  personal  estate  left  out  on  personal  security 
by  the  testator  himself.  The  debtor  becomes  bankrupt,  but 
down  to  that  time  pays  his  interest  regularly.  Eight  months 
afterwards,  the  plaintiffs,  cestuis  que  trust,  request  the  de- 
fendant to  call  in  the  money,  but  nothing  can  be  found.  The 
defendant  is  liable.^ 

719.  If  the  business  of  the  trustee  be  such  as  to  involve 
questions  of  law,  or  such  as  to  suggest  the  aid  of  legal  coun- 

1  Twaddle's  Appeal,  5  Barr,  15;  Miller  v.  Proctor,  20  Ohio  St.  442; 
Harvard  College  v.  Amory,  9  Pick.  446,  461 ;  Hunt,  Appellant,  141  Mass. 
515;  Charitable  Corp.  r.  Sutton,  2  Atk.  400,  Lord  Hardwicke. 

2  Chambersburg  Sav.  Assoc.  Appeal,  76  Penn.  St.  203 ;  Charlton's 
Appeal,  34  Penn,  St.  473. 

8  CafErey  v.  Darby,  6  Ves.  488. 

*  Powell  V.  Evans,  5  Ves.  839 ;  Johnson's  Estate,  9  Watts  &  S.  107 ; 
Chambersburg  Sav.  Assoc.  Appeal,  supra. 


350  LAW  OF  TORTS.  [Part  III. 

sel,  due  care  and  diligence  will  (probably)  require  him  to 
Taking  legal  obtain  legal  advice.  But  having  complied,  and 
advice.  having    no    reason    to   suppose    that   the  advice 

given  is  incompetent,  the  trustee  will  be  exonerated  in  act- 
ing thereon.  For  example :  The  defendants,  executors  of  an 
estate,  under  directions  to  invest  the  moneys  of  the  estate  on 
loan  well  secured,  apply  to  a  lawyer  of  good  standing  in 
another  town  concerning  the  security  of  a  mill  in  that  place, 
offered  by  a  person  desiring  to  borrow  money  of  the  defend- 
ants, and  are  told  that  the  security  is  good;  and  a  mortgage 
of  the  borrower's  interest  therein  is  accordingly  taken.  The 
mill  however  is  owned  by  the  borrower  and  another  in  part- 
nership, and  is  liable  for  the  firm  debts.  The  owners  become 
insolvent,  and  the  note  of  a  third  person,  well  secured,  is 
offered  the  defendants  on  condition  of  a  release  of  the  mort- 
gage. By  advice  of  the  same  lawyer,  the  offer  is  declined, 
and  the  mill  security  is  lost.  The  defendants  are  not  liable, 
having  acted  with  the  prudence  of  men  of  ordinary  diligence, 
care,  and  prudence  in  the  matter.* 

720.  Directors  of  corporations  are  bound  to  exercise  all  the 
ordinary  diligence  of  persons  in  the  same  situation  i^  and 
Whatdirec-  that  may  vary  according  to  the  nature  of  the 
tors  should  do.  business.^  In  speculative  ventures,  so  understood 
by  all  parties  concerned,  a  less  rigid  rule  of  prudence  would 
be  applied  than  in  transactions  not  speculative;  and  it  is  laid 
down  that  in  cases  of  the  first  kind  '  crassa  nefflisrentia  '  must 
be  shown,  if  the  directors  acted  within  their  powers,  in  order 
to  impose  liability  upon  them.^  Directors  are  not  in  ordinary 
cases  expected  to.  devote  their  whole  time  and  attention  to 
the  corporation  over  whose  interests  they  have  charge,  and 
are  not  guilty  of  negligence  in  failing  to  give  constant  super- 
intendence to  the  business.     Other  officers,  to  whom  com- 

1  MiUer  v.  Proctor,  20  Ohio  St.  442 ;  Ca,ses,  45.5.  The  law  in  some 
of  the  States  prescribes  the  duty  of  trustees  in  investing  trust  funds. 
Ante,  p.  330,  note. 

2  Overend  v.  Gibb,  L.  R.  5  H.  L.  480,  494,  Lord  Hatherley. 
»  Id.  *  Id. 


Chap.  XVIII.  §  8.]  NEGLIGENCE.  351 

pensation  is  paid  for  their  whole  time  in  the  affairs  of  the 
corporation,  have  the  immediate  management.  But  the 
duties  may  be  such  as  to  require  all  the  time  of  the  directors; 
and  whatever  the  office,  if  they  undertake  it  they  must  per- 
form it  fully.  ^ 

721.  In  relation  to  such  other  officers,  the  duties  of  directors 
are  those  of  control ;  and  the  neglect  which  would  render  them 
liable  for  not  exercising  that  control  properly  must  dejDend 
upon  circumstances.  They  are  simply  to  exercise  common 
diligence  over  those  officers.  If  nothing,  in  the  exercise  of 
such  diligence,  has  come  to  their  knowledge  to  awaken  sus- 
picion concerning  the  conduct  of  the  managing  officers,  the 
directors  are  not  guilty  of  negligence,  and  hence  are  not 
liable  for  losses  sustained  by  reason  of  the  misconduct  of  such 
officers.^  Those  officers  are  the  agents  or  servants  of  the 
corporation,   not  of  the  directors. 

722.  If  however  the  directors  become  acquainted  with  any 
fact  concerning  the  officers  of  the  body,  calculated  to  put 
prudent  men  on  their  guard,  a  degree  of  care  commensurate 
with  the  evil  to  be  avoided  is,  it  seems,  required;  and  a  fail- 
ure to  exercise  such  care,  resulting  in  damage  to  the  corpora- 
tion or  to  its  customers,  will  render  the  directors  personally 
liable.^  And  the  same  rule  (probably)  applies  to  all  trustees 
or  general  officers  having  the  oversight  of  subordinate  officers. 
But  generally  speaking  the  liability  of  the  directors  or  trus- 
tees in  such  cases  is  to  the  corporation  itself  and  not  to  the 
individual  members.^ 


1  York  &  North  Midland  Ry.  Co.  v.  Hudson,  16  Beav.  485,  491, 
Romilly,  I\r.   R. 

2  Percy  v.  Millaudon,  20  Mart.  68. 

8  Brewer  v.  Boston  Theatre,  104  Mass.  378.  Quaere,  if  'crassa  negli- 
gentia'  would  be  necessary  to  create  liability  in  such  a  case?  But 
after  all  'crassa  negligentia' is  only  negligence  in  the  particular  situa- 
tion; it  is  'crassa'  only  as  compared  with  what  might  be  negligence  in 
a  different  situation.  See  Beal  v.  South  Devon  Ry.  Co.,  3  H.  &  C.  337, 
ante,  p.  336.  The  want  of  that  prudence  which  in  the  same  circum- 
stances a  prudent  man  would  exercise  in  his  own  behalf  is  '  crassa  negli- 
gentia.'     Lord  ITatherley  in  Overend  v.  Gibb,  L.  R.  .5  H.  L.  480,  494. 

*  Brewer  v.  Boston  Theatre,  supra.     It  is  only  from  necessity,  and 


352  LAW  OF   TORTS.  [Part  IH. 

§  9.    Of  Public  Bodies  and  Public  Officers. 

723.  The  fact  that  public  bodies  or  public  officers  may  have 
contracted  with  or  assumed  some  duty  to  the  State  or  to  a 
Dutytoindi-  municipal  government  to  perform  a  duty  faith- 
viduais.  fully  does  not  imply  that  they  may  not  also  owe 
special  duties  to  individuals  in  the  performance  of  their  busi- 
ness.^ Their  duties  in  this  respect  are  like  those  of  private 
individuals  transacting  similar  business;  and  whether  tliey 
receive  emoluments  or  not  is  immaterial.^  Such  officers  are 
bound  to  exercise  the  diligence  which  the  nature  of  their 
position  reasonably  demands ;  and  for  a  failure,  resulting  in 
special  damage  to  any  individual,  they  are  liable  to  him.^ 
For  example:  The  defendant,  a  municipal  corporation,  ac- 
cepts a  grant  from  the  English  Crown  conveying  a  borough, 
by  which  it  is  directed  to  keep  in  repair  certain  sea  walls. 
The  corporation  fails  in  this  duty,  and  the  plaintiff,  a  private 
citizen,  is  injured  thereby.  This  is  a  breach  of  duty  to  the 
plaintiff.*  Again:  The  defendant,  a  public  inspector  of 
meat,  undertakes,  in  accordance  with  his  official  duty,  to 
cut,  weigh,  pack,  salt,  and  cooper,  for  export,  a  quantity  of 
beef  belonging  to  the  plaintiff,  and  does  the  same  so  negli- 
gently that  the  meat  becomes  spoiled  and  worthless.  This  is 
a  breach  of  duty  to  the  plaintiff,  and  the  defendant  is  liable 
to  him  in  damages.^ 

724.  An  individual  cannot  however  for  his  own  benefit,  in 
his  own  name,  maintain  a  suit  against  another  for  negligence 
Suits  by  indi-  ill  fh©  discharge  of  a  public  duty  where  the  dam- 
viduais.  age  is   solely  to  the  public.^     The  reason  some- 

to  prevent  a  failui-e  of  justice,  that  individual  members  of  the  corpora- 
tion can  proceed  against  the  directors  or  trustees.     Id. 

1  Henley  v.  Lyme  Regis,  5  Bing.  91 ;  s.  c.  1  Bing.  N.  C.  222.  See 
Clothier  v.  Webster,  12  C.  B.  n.  s.  790 ;  Mersey  Docks  v.  Gibbs,  L.  R. 
1  H.  L.  93 ;  Rhobidas  v.  Concord,  47  Atl.  Rep.  82  (N.  H.). 

2  Mersey  Docks  v.  Gibbs,  supra. 

3  See  Story,  Agency,  §§  320,  321 ;  Hayes  v.  Porter,  22  Maine,  371. 
*  Henley  v.  Lyme  Regis,  supra.     See  Rhobidas  v.  Concord,  supra. 

5  Hayes  v.  Porter,  supra. 

6  Black.  Com.  i.  220. 


Chap.  XVIII.  §  9.]  NEGLIGENCE.  353 

times  given  for  this  is,  that  great  inconvenience  would  follow 
if  a  person  violating  a  trust  of  this  kind  could  be  sued  by  each 
person  in  the  community.^  A  better  reason,  possibly,  is, 
that  as  the  right  infringed  belongs  to  the  sovereign,  as  repre- 
senting the  public  at  large,  so  the  correlative  duty  is  one  for 
the  breach  of  which  the  sovereign  alone  can  sue. 

725.  Officers  and  agents  of  the  general  government,  such  as 
postmasters  and  managers  of  public  works,  are  not  liable  for 
the  negligence  or  other  misconduct  of  their  subor- 
dinates, unless  the  latter  are  the  servants  of  the  public  officers 
former  and  accountable  to  them  alone.     Govern-  for  acts  of 
ment  officers   are  however  liable  for  the  conse- 
quences of  their  own  negligence ;  ^  and  this  covers  cases  of 
negligence  with  respect  to  the  conduct  of  such  of  their  subor- 
dinates as  are  under  their  supervision  and  guidance.^     For 
example :  The  defendant,  a  postmaster,  appoints  with  notice 
an  incompetent  person  as  a  clerk  to  the  government  in  his 
post-office ;  and,  by  reason  of  the  negligence  or  incompetence 
of  such  person,  a  letter   containing  $100  belonging  to  the 
plaintiff  is  lost.     The  defendant  is  liable.* 

726.  Officers  of  the  courts  are  liable  for  the  injurious  con- 
sequences of  such  official  acts  of  their  own  or  of  their  servants 
as  are  attributable  to  want  of  the  care  of  prudent  officers  of 
men  in  the  same  situation.^  For  example:  The  courts, 
defendant  levies  upon  a  quantity  of  coal  on  board  a  vessel. 
The  coal  is  left  on  the  vessel,  with  the  master's  consent,  in 
charge  of  a  keeper  of  the  defendant,  and  while  so  held  the 

1  Wharton,  NegMgence,  §  286;  Ashby  v.  White,  Ld.  Raym.  938. 

2  Clothier  v.  Webster,  12  C.  B.  n.  s.  790;  Mersey  Docks  v.  Gibbs, 
L.  R.  1  H.  L.  93. 

8  Story,  Bailment,  §  463;  Schroyer  v.  Lynch,  8  Watts,  453;  Wig- 
gins V.  Hathaway,  6  Barb.  632. 

*  See  Wiggins  v.  Hathaway,  supra. 

6  Wolfe  V.  Door,  24  Maine,  104  ;  Dunlop  v.  Knapp,  14  Ohio  St.  64 ; 
Kennard  v.  Willmore,  2  Heisk.  619 ;  Browning  v.  Hauford,  5  Hill,  538:; 
Moore  v.  Westervelt.  27  N.  Y.  234. 

23 


354  LAW   OF   TORTS.  [Part  III. 

vessel  is  sunk  during  a  gale,  with  the  coal  on  board,  to 
the  damage  of  the  jjlaintiff,  for  whom  the  levy  is  made.  The 
defendant  is  liable  if  he  has  failed  to  take  such  steps  for  the 
safety  of  the  coal  as  a  careful,  prudent  man,  well  acquainted 
with  the  condition  of  the  vessel  and  its  location  with  regard 
to  exposure  to  storms,  might  reasonably  be  expected  to  take 
if  the  coal  belonged  to  himself.^ 

727.  A  judge  however,  while  acting  in  a  judicial  capa- 
city, is  not  liable  for  negligence  ;2  and  the  same  is  true  even 
Exemption  of  of  ^3,  person  acting  in  a  situation  which  makes 
judges.  i^ii^^  jjo  more  than  a  private  arbitrator.^  Hav- 
ing submitted  a  dispute  to  the  decision  of  an  arbitrator, 
neither  party  can  require  him  to  exercise  the  skill  or  care 
of  an  expert,  unless  he  has  held  himself  out  to  possess  it, 
or  has  agreed  to  exercise  it.  For  example :  The  defendant, 
as  broker,  makes  a  contract  for  the  plaintiff,  as  follows: 
'  Sold  by  order  and  for  account  of  P,  to  my  principal  S, 
to  arrive,  500  tons  Black  Smyrna  raisins  — 1869  growth  — 
fair  average  quality  in  opinion  of  selling  broker,  to  be 
delivered  here  in  London  —  at  22s.  per  cwt.,'  etc.  This 
contract  makes  the  defendant  virtually  an  arbitrator,  to  de- 
termine between  the  parties  any  difference  arising  between 
them  as  to  the  quality  of  the  raisins  tendered  in  fulfilment 
of  the  contract,  not  stipulating  for  care  or  skill  on  the  part  of 
the  defendant;  and  he  is  not  liable  for  failing  to  exercise 
reasonable  care  and  skill  in  coming  to  a  decision,  if  he  act  in 
good  faith,  to  the  best  of  his  judgment.'* 

§  10.    Of  the  Use  of  Premises  :  Duty  to  Plaintiff. 

728.  In  this  section,  the  duty  of  the  owner  or  occupant  of 
premises  to  the  ^j/cn'/i^'t^,  for  damages  sustained  thereon,  by 
reason  of  the  condition  of  the  premises,  is  to  be  stated.     The 

1  Moore  v.  Westervelt,  27  N.  Y.  234. 

2  See  Bradley  v.  Fislier,  13  Wall.  335,  350 ;  Yates  v.  Lansing,  5  Johns. 
282 ;  Pratt  v.  Gardiner,  2  Cush.  63. 

3  Pappa  V.  Rose,  L.  R.  7  C.  P.  32,  525 ;  Tharsis  Sulphur  Co.  v.  Loftus, 
L.  R.  8  C.  P.  1.     See  Hoosac  Tunnel  Co.  v.  O'Brien,  137  Mass.  424. 

*  Pappa  V.  Rose,  supra. 


Chap.  XVIII.  §  10.]  NEGLIGENCE.  355 

question  of  the  existence  and  nature  of  the  duty  turns  more  or 
less  upon  the  consideration  of  the  occasion  which  Division  of 
brought  the  plaintiff  there ;  that  is,  whether  the  the  subject. 
jDlaintiff  was  a  trespasser,  a  bare  licensee,  an  invited  licensee, 
a  customer-licensee,  or  a  licensee  by  law.^  The  question 
must  therefore  be  considered  with  reference  to  each  of  these 
situations. 

729.    The  owner  or  occupant  of  premises  owes  no  duty  of 
care  or  diligence  to  keep  his  premises  in  repair  for  the  pur- 
poses of  trespassers.     In   other  words,    it  is    no  ^ 
1  1       I-    1    ,      ,  ,  ,  Trespassers : 

breach  o±  duty  to  a  trespasser  that  a  man's  prem-  due  care: 

ises  were,  by  reason  of  his  '  passive  '  negligence, ^  wantonness. 
in  a  dangerous  state  of  disorder,  whatever  the  consequences 
to  the  former.  But  this  rule  of  law  must  not  be  understood 
as  declaring  that  the  occupant  or  owner  owes  no  duty  to  tres- 
passers with  regard  to  the  management  of  his  premises.  He 
has  no  right  even  towards  such  persons  to  maim  them,  as  by 
savage  beasts,  hidden  guns,  or  missiles.^  For  example:  Tlie 
defendant  has  a  savage  dog  on  his  premises,  which  he  care- 
lessly allows  in  the  daytime  to  run  at  large  unmuzzled,  hav- 
ing notice  that  the  dog  is  savage.  The  plaintiff,  having 
straj-ed  upon  the  premises  without  permission,  while  hunt- 
ing, is  attacked  and  bitten  by  the  dog.  The  defendant  is 
deemed  liable.*  Again:  The  defendant  sets  a  spring-gun  in 
his  grounds  to  '  catch  '  persons  entering  thereon  without  per- 
mission, and  fails  to  give  notice  of  the  particular  danger.  The 
plaintiff  while  trespassing  on  the  premises  is  injured  by  the 
gun,  having  no  notice  of  danger.     The  defendant  is  liable.^ 

1  For  the  case  of  servants,  see  §  11.  "^  Ante,  p.  326. 

3  Talmage  v.  Smith,  .59  N.  W.  Rep.  656  (Mich.). 

*  Loomis  V.  Terry,  17  Wend.  496,  an  extreme  case. 

^  Bird  V.  Holbrook,  4  Bing.  628.  As  to  notice  now,  see  24  &  2.5 
Vict.  c.  100,  §  31.  If,  in  the  absence  of  statute,  the  trespas.ser  had 
knniole'Ige  of  the  danger,  or  if  a  man  entered  in  the  night-time  with  a 
felonious  intent,  he  (probably)  'assumed  the  risk  '  (see  §  11)  and  could 
not  recover;  though  even  in  such  cases  the  owner  of  the  premises 
would  not  be  justified  in  purposely  inflicting  greater  harm  than  would 
be  necessary  for  the  protection  of  his  property  and  the  expulsion  of  the 
intruder.  See  the  two  cases  just  cited ;  also  Ilott  v.  Wilks,  3  B.  &  Aid. 
308;  Woolf  V.  Chalker,  31  Conn.  121;  ante,  p.  245. 


356  LAW  OF  TORTS.  [Part  III. 

730.  More  than  that,  while  the  owner  of  premises  is  not 
bound  to  exercise  care  or  diligence  to  keep  his  premises  in 
repair  for  trespassers,  he  does  owe  the  duty,  even  to  such  per- 
sons, not  to  suffer  them  to  receive  harm  by  reason  of  any 
improper  condition  of  them  if  he  knows  that  a  trespasser  is  in 
danger  thereby  and  can  give  him  warning.  For  the  owner, 
with  knowledge  that  a  person  is  in  danger  of  harm  from  fault 
of  his,  the  owner's,  to  do  nothing,  would  show  want  of  ordi- 
nary regard  for,  in  other  words,  wanton  or  reckless  disregard 
of,  the  person's  safety,  one  of  the  forms  of  negligence  already 
referred  to.^  In  such  a  case,  that  person  would  have  a  legal 
right  to  proper  warning,  which,  but  for  the  owner's  knowledge 
of  his  danger,  he  would  not  have  apart  from  statute  or  from 
some  menace  to  safety,  of  purpose,  by  the  owner. ^  The  sort 
of  negligence  for  which  the  owner  is  not  liable  to  trespassers, 
want  of  care  or  diligence  in  regard  to  the  condition  of  his 
premises,  is  accordingly  passive  negligence ;  the  sort  for  which 
he  is  liable,  active  negligence.^ 

731.  A  bare  licensee,  as  the  term  is  here  used,  is  one  who 

enters  another's  premises,  or  is  upon  some  par- 
meant  by         ticular   part   of   the   same,*   without  .request   or 
bare  licensees:  inducement  of  the  occupant,  but  still  under  cir- 
cumstances from  which  he  has  come  to  suppose 

^  Maynard  v.  Boston  R.  Co.,  115  Mass.  458,  Gray,  C.  J. ;  Claridge  v.  So. 
Staffordshire  Tramway  Co.,  1892,  1  Q.  B.  422,  fast  driving.  See  ante, 
p.  325. 

■■^  See  Bird  v.  Holbrook,  supra,  and  the  note  following,  and  compare 
cases  of  gift,  loan,  or  baihnent  of  chattels  which  are  defective  or  other- 
wise dangerous;  the  giver,  lender,  or  bailor  not  being  liable  for  damage 
unless  he  knew  of  the  danger  and  did  not  give  warning.  Coughlin  v. 
Gillison,  1899,  1  Q.  B.  145,  C.  A.;  Indermaner  v.  Dames,  L.  R.  1  C.  P. 
274  (s.  c.  L.  R.  2  C.  P.  318)  ;  Cases,  482,  489  ;  Farrant  v.  Barnes,  11  C.  B. 
N.  s.  553,  564;  ante,  p.  337.  If  the  act  was  a  mere  gratuity,  the  owner 
could  not  be  required  to  enlarge  his  gift  by  making  the  chattel  perfect; 
the  most  that  could  be  demanded  would  be  that  he  should  give  warning 
if  he  knew  of  the  danger. 

8  Ante,  p.  326,  as  to  these  terms,  and  see  Southcote  v.  Stanley, 
1  H.  &  N.  247,  Bramwell,  B.,  as  to  the  second. 

*  See  Batchelor  v.  Fortescue,  11  Q.  B.  D.  474. 


Chap.  XVIII.  §  10.]  NEGLIGENCE.  357 

a  permission ;  as  in  the  case  of  persons  accustomed,  without 
interference,  to  cross  a  portion  of  the  line  of  a  railway  in  no 
definite  track,  ^  or  possibly  of  persons  crossing  an  open  field 
on  a  foot-path,  commonly  used  by  the  neighbors,  but  without 
any  right  of  way.^  A  person  so  doing,  though  not  in  a  posi- 
tion to  require  the  owner  or  occupant  of  the  land  to  exercise 
care  in  regard  to  the  management  or  the  state  of  the  prem- 
ises,^ occupies  (probably)  a  more  favorable  position  than  a 
trespasser.  He  can,  of  course,  insist  that  the  occupant  shall 
let  loose  no  savage  beast  upon  him,  set  no  traps  in  his  way 
without  giving  him  fair  notice,*  or  permit  him  to  suffer  harm 
there,  knowing  that  he  is  in  danger.^  But  further  it  should 
seem  that,  if  it  were  usual  for  people  to  pass  over  the  occu- 
pant's premises  in  the  night-time,  he  could  require  the  occu- 
pant to  exercise  reasonable  care  with  regard  to  the  keeping  of 
vicious  animals,  of  whose  propensity  to  do  harm  the  occu- 
pant has  notice. 

732.  And  it  may  be  that  some  special  duty  has  been  as- 
sumed by  the  occupant,  or  has  been  imposed  by  law  upon  him, 
as  in  the  case  of  a  railway  company  to  sound  a  whistle  at  cer- 
tain places,  or  to  keep  gates  shut  while  trains  are  passing; 
this  too  would  modify  the  question  of  liability.^  For  exam- 
ple: The  defendant,  a  railway  company,  has  a  rule  that  a 
whistle  shall  be  sounded  by  express  trains  at  a  certain  point 
where,  with  the  acquiescence  of  the  company,  persons  are 
accustomed  to  cross  its  track.  The  plaintiff's  intestate  at- 
tempts to  cross  at  the  point  in  the  night,  while  a  train  is 
standing  still  in  such  a  position,  according  to  some  of  the 
evidence,  as  to  prevent  any  one  from  seeing  an  approaching 

1  Harrison  v.  Northeastern  Ry.  Co.,  29  L.  T.  n.  s.  844. 

2  Morrow  v.  Sweeney,  38  N.  E.  Rep.  187  (Ind.). 

8  Batchelor  v.  Fortescue,  11  Q.  B.  D.  474  ;  Harrison  v.  Northeastern 
Ry.  Co.,  29  L.  T.  n.  s.  844  ;  Johansen  v.  Davies,  57  L.  J.  Q.  B.  392 ; 
Sweeny  v.  Old  Colony  R.  Co.,  10  Allen,  368 ;  Cases,  467. 

4  See  Hart  v.  Cole,  156  Mass.  475,  477. 

6  Southcote  V.  Stanley,  1  H.  &  N.  247. 

6  Dublin  &  Wicklow  Ry.  Co.  v.  Slattery,  3  App.  Cas.  1155;  North- 
eastern Ry.  Co,  V.  Wanless,  L.  R.  7  II.  L.  12,  as  to  open  gates ;  Williams 
V.  Great  Western  Ry.  Co.,  L.  R.  9  Ex.  157,  open  gates. 


358  •  LAW  OF   TORTS.  [Part  IIL 

express  train,  and  is  run  over  and  killed.  There  is  evidence, 
but  it  is  contradicted,  that  a  whistle  was  duly  sounded,  and 
there  is  evidence  that  the  train  carried  lights.  A  jury  may 
lind  the  defendant  guilty  of  breach  of  duty  to  the  deceased.^ 

733.  A  bare  licensee  can  insist  upon  the  occupant's  keep- 
ing his  premises  in  a  safe  condition  in  another  particular.  A 
man  has  no  right  to  render  the  highway  dangerous  or  less 
useful  to  the  public  than  it  ordinarily  is ;  if  he  should  do  so, 
he  is  liable  as  for  a  nuisance  to  any  one  who  has  suffered  dam- 
age thereby.^  And  a  bare  licensee  on  the  wrongdoer's  prem- 
ises will  be  entitled  to  recover  for  any  damage  sustained 
thereby.  For  example :  The  defendant  digs  a  pit  adjoining 
the  highway,  and  fails  to  fence  it  off  from  the  street.  The 
plaintiff,  while  walking  along  the  street,  in  the  dark,  acci- 
dentally steps  a  little  aside  in  front  of  the  pit,  and  falls  into 
it,  thereby  sustaining  bodily  injury.  The  defendant's  act  in 
leaving  the  place  unguarded  makes  it  a  public  nuisance,  and 
he  is  liable  for  the  injury  received  by  the  plaintiff."^ 

734.  If  however  the  pit,  though  near,  were  not  substantially 
adjoining  the  highway,  so  that  the  plaintiff  must'  have  been  a 
trespasser  before  reaching  it,  he  could  not  treat  the  omission 
of  the  defendant  to  fence  as  a  breach  of  duty.  For  example: 
The  defendants,  being  possessed  of  land  near  to  an  ancient 
common  and  public  footway,  construct  a  reservoir  for  receiv- 
ing the  back-wash  of  water  at  the  lock  of  a  canal  owned  by 
them.  The  plaintiff's  intestate  sets  out  by  night  along  this 
footpath  for  Sheffield.  The  path  runs  alongside  the  canal 
for  about  three  hundred  yards  to  a  point  at  which  it  is  bounded 
on  one  side  by  a  lock,  and  on  the  other  by  the  reservoir.  At 
this  point  the  pathway  turns  to  the  right  over  a  bridge,  cross- 


1  Dublin  &  Wicklow  Ry.  Co.  v.  Slattery,  supra.  See  also  Davey  v. 
Southwestern  Ry.  Co.,  12  Q.  B.  Div.  70,  affirming  11  Q.  B.  D.  213; 
Gray  v.  Northeastern  Ry.  Co.,  48  L.  T.  n.  s.  904. 

2  Ante,  p.  299. 

8  Barnes  v.  Ward,  9  C.  B.  392.  But  see  contra,  Howland  v.  Vincent, 
10  Met.  371,  in  which  however  the  point  appears  to  have  been  over- 
looked that  the  defendant's  act  amounted  to  a  public  nuisance.  And 
see  Damon  v.  Boston,  149  Mass.  147. 


Chai-.  XVIII.  §  10.]  NEGLIGENCE.  359 

ing  the  by-wash.  A  person  continuing  straight  on  in  tlie 
direction  of  the  pathway,  and  not  turning  to  the  right  to  go 
o^er  the  bridge,  would  find  himself  (if  not  prevented  by  the 
arm  of  a  lock)  upon  a  grassy  plat  about  five  yards  long  by 
seven  broad,  between  the  lock  and  the  by-wash,  level  with, 
but  somewhat  distant  from,  the  footpath;  the  plat  being  un- 
fenced,  and  having  a  fall  of  about  three  yards  to  the  water. 
On  the  morning  following  the  setting  out  of  the  deceased,  he 
is  found  drowned  at  this  point.  The  defendants  are  not 
guilty  of  a  breach  of  duty  in  not  fencing  the  place,  since  it  is 
not  substantially  adjoining  the  highway,  and  the  deceased 
must  have  become  a  trespasser  before  reaching  the  reservoir.  ^ 

735.  The  same  will  be  true  of  injury  sustained  by  straying 
cattle  or  horses.^  For  example :  The  defendant  digs  a  pit  in 
his  waste  land  within  thirty-six  feet  of  the  high-  straying 
way,  and  the  plaintiff's  horse  escapes  into  the  animals, 
waste  and  falls  into  the  pit  and  is  killed.  The  defendant  has 
violated  no  duty  to  the  plaintiff.-^  Again:  The  plaintiff's 
horse  strays  upon  the  defendant's  railway  track  and  is  killed 
by  negligence  (short  of  wantonness,  i.  e.  active  negligence)  of 
the  defendant's  servants.     The  defendant  is  not  liable.* 

736.  If  tlie  licensee  entered  or  acted  by  direct  invitation  or 

the   occupant,  the  situation  may  become  very  different.     In 

such  cases  the  occupant  owes  a  duty  to  the  licen- 

.       ,  .      „  .  .        ,  Invitation, 

see,  not  merely  to  restrain  Ins  ferocious  animaJs, 

and  to  prevent  injury  from  dangerous  concealed  engines,  and 

1  Hardcastle  v.  South  Yorkshire  Ry.  Co.,  4  H.  &  N.  67.  See  Dinks 
V.  South  Yorkshire  Ry.  Co.,  3  Best  &  S.  244;  Houudsell  v.  Smyth, 
7  C.  B.  N.  8.  731 ;  Piggott,  Torts,  230. 

^  Blyth  V.  Topham,  Croke,  Jac.  158;  Mayiiard  v.  Boston  &  M.  R.  Co., 
115  Mass.  458. 

3  Blyth  V.  Topham,  supra. 

*  Maynard  v.  Boston  &  M.  R.  Co.,  supra.  See  Taft  v.  New  York 
R.  Co.,  157  Mass.  297.  See  however  Charman  v.  Southeastern  Ry.  Co., 
21  Q.  B.  Div.  .524,  under  Statute.  Wanton  injury  in  such  ca.ses  would 
create  liability.  Maynard  r.  Boston  &  M.  R.  Co.,  supra;  Eames  v. 
Salem  R.  Co.,  98  Mass.  560  ;  ante,  p.  356. 


300  LAW  OF  TORTS.  [Part  IIL 

to  guard  against  nuisances  adjoining  the  highway,  but  also, 
unless  the  invitation  was  for  mere  hospitality  or  benevolence 
or  friendship,  to  keep  his  premises  in  reasonable  repair,  and 
to  refrain  from  negligence  generally;  otherwise,  he  will  be 
liable  for  any  injury  sustained  by  the  bcensee,  not  caused  by 
the  latter's  own  act.  In  other  words,  the  owner  or  occupant 
is  bound,  except  in  cases  of  hospitality  or  the  like,  to  exercise 
reasonable  care  to  prevent  damage  from  unusual  danger,  of 
w'hich  he  has,   or  ought  to  have,   knowledge. 

737.  This  is  true  even  in  respect  of  gratuitous  privileges 
touching  public  and  quasi -public  ways,  such  as  railways  and 

roadways  for  entering  one's  premises.  For  ex- 
quasi-public  ample:  The  defendants,  a  railroad  corporation, 
^^^^"  have  a  private  crossing  on  their  land  over  their 

railroad,  at  grade,  in  a  city,  which  crossing  they  have  con- 
structed for  the  accommodation  of  the  public ;  and  they  keep 
a  flagman  stationed  there  to  prevent  persons  from  crossing 
when  there  is  danger.  The  plaintiff  coming  dow^n  the  way 
to  the  crossing  with  horse  and  wagon  is  signalled  by  the  flag- 
man to  cross,  and  on  proceeding,  according  to  the  signal,  to 
cross  the  track,  is  run  against  by  one  of  the  defendants' 
engines ;  the  flagman  having  been  guilty  of  carelessness  in 
giving  the  signal.  This  is  a  breach  of  duty,  and  the  defend- 
ants are  liable  for  the  damage  sustained.^  Again:  The  de- 
fendant, owner  of  land,  having  a  private  road  for  the  use  of 
persons  coming  to  his  house,  gives  permission  to  a  builder 
engaged  in  erecting  a  house  on  the  land,  to  place  materials 
on  the  road.  The  plaintiff,  having  occasion  to  use  the  road 
in  the  night,  for  the  purpose  of  going  to  the  defendant's 
residence,  runs  against  the  materials  and  sustains  damage, 
without  fault  of  his  own.  The  defendant  is  liable;  having 
held  out  an  inducement  to  the  plaintiff. ^ 

738.  The  gist  of  the  liability  in  such  cases  consists  in  the 
fact  that  the  person  injured  did  not  act  merely  for  his  own 

1  Sweeny  t:  Old  Colony  R.  Co.,  10  Allen,  368;  Cases,  467.  See 
Holmes  V.  Drew,  151  Mass,  578.  As  to  the  discontinuance  of  a  gate* 
keeper  see  Cliff  v.  Midland  Ry.  Co.,  L.  R.  5  Q.  B.  258. 

2  Corby  v.  Hill,  4  C.  B.  n.  s.  556. 


Chap.  XVIII.  §  10.]  NEGLIGENCE.  361 

convenience  and  pleasure,  and  from  motives  to  which  no  act 
or  sign  of  the  owner  or  occupant  contributed,  but  that  he 
entered  the  premises  because  he  was  led  to  believe  that  the  way 
was  intended  to  be  used  by  visitors  or  passengers,  and  that 
such  use  was  not  only  acquiesced  in  by  the  owner  or  person 
in  possession  and  control  of  the  premises,  but  that  it  was  in 
accordance  with  the  intention  and  design  with  which  the  way 
was  adapted  and  prepared  or  allowed  to  be  so  used.^  The 
real  distinction  therefore  is  this :  A  mere  passive  acquiescence 
by  an  owner  or  occupier  in  a  use  of  a  way  over  his  land  by 
others,  may  involve  no  liability  for  negligence ;  but  if,  directly 
or  by  implication,  he  induce  persons  to  enter  upon  his  road- 
way for  purposes  not  merely  of  hospitality  or  the  like,  he 
thereby  assumes  an  obligation  to  keep  it  in  a  safe  condition, 
suitable  for  such  use,  and  for  a  breach  of  this  obligation  he 
is  liable  in  damages  to  a  person  injured  thereby. ^ 

739.  It  was  urged  in  the  authority  in  which  this  doctrine 
was  laid  down  (a  point  worthy  of  notice  here)  that,  if  the 
defendants  were  liable  in  such  a  case,  they  would  be  made  to 
suffer  by  reason  of  the  fact  that  they  had  taken  precautions 
to  guard  against  accident  at  a  place  which  they  were  not 
bound  to  keep  open  for  use  at  all,  and  that  the  case  would 
thus  present  the  singular  aspect  of  a  party  liable  for  neglect 
in  the  performance  of  a  duty  voluntarily  assumed,  and  not 
imposed  by  law.  The  answer  was,  that  this  was  no  anomaly. . 
If  a  person,  it  was  observed,  undertake  to  do  an  act,  or  to 
discharge  a  duty,  by  which  the  conduct  of  others  may  prop- 
erly be  regulated,  he  is  bound  to  perform  it  in  such  a  manner 
that  those  who  are  rightfully  led  to  a  course  of  conduct  or 
action  on  the  faith  that  the  act  or  duty  will  be  properly  per- 
formed shall  not  suffer  loss  or  injury  by  reason  of  his  negli- 
gence.^ The  liability  in  such  cases  does  not  depend  upon  the 
motives  or  considerations  which  induced  a  party  to  take  on 
himself  a  particular  duty,  but  on  the  question  whether  the 

1  Sweeny  v.  Old  Colony  R.  Co.,  supra,  Bigelow,  C.  J. 

2  Id.     See  also  Bolch  r.  Smith,  7  II.  &  N.  736,  741. 

'  See  Dublin  &  Wicklow  Ry.  Co.  v.  Slattery,  3  App.  Cas.  1155 ;  Cliff 
V.  Midland  Ry.  Co.,  L.  R.  5  Q.  B.  258. 


362  LAW  OF  TORTS.  [Part  III 

legal  rights  of  others  have  been  violated  by  the  mode  in  which 
the  charge  assumed  has  been  performed.^  In  other  words, 
one  may  in  certain  cases  be  compelled  to  enlarge  one's  gift; 
the  only  help  being  not  to  make  the  gift. 

740.  It  should  be  noticed  however  that  this  doctrine,  as 
applied  to  gratuitous  permission  and  invitation,  is  limited  to 
Limitation  of  Special  objects,  such  as  private  crossings  over 
doctrine.  railways,  and  private  roadways,  which  men  have 
been  led  to  suppose  that  they  have  a  right  to  use.  Having 
led  the  plaintiff  so  to  act,  the  defendant  cannot  say  that  the 
plaintiff  was  only  a  licensee.  The  subject  appears  indeed  to 
have  started  on  the  broader  basis,  that  invitation,  if  actual, 
created  of  itself  a  duty  to  have  the  premises  in  fit  condition 
for  the  purpose,  so  far  as  might  be  by  due  care  or  diligence ;  ^ 
but  legal  theory  has  changed,  and  the  doctrine  has  been 
limited  to  cases  like  those  just  mentioned.^  Very  likely 
those  cases  are  only  examples  of  the  limitation. 

741.  In  relation  to  other  cases  it  is  now  held  that  regard 
must  be  had  to  the  nature  of  the  invitation.  If  the  licensee 
Nature  of  the  is  invited  only  as  a  guest  or  friendly  visitor  or 
invitation  a      f^j.  bcnevolence,  he  enters  on  no  better  footings, 

material  con-  '  _  ^  °' 

sideration.  so  far  as  the  present  question  is  concerned,  than 
if  he  were  a  bare  licensee;  he  cannot  hold  the  owner  or 
occupant  to  any  duty  of  care  or  diligence  beyond  giving 
notice  of  any  danger  of  which  he  is  aware. ^  Difficulty  will 
sometimes  arise  in  determining  the  nature  of  the  invitation, 
—  whether  it  is  one  purely  of  hospitality  or  benevolence,  or 
not;  for  it  will  occasionally  happen  that  other  motives,  per- 
haps stronger  ones,  will  be  united  with  the  first,  as  for  in- 
stance where  the  harm  befell  the  plaintiff  at  a  corner-stone 

1  Sweeny  v.  Old  Colony  R.  Co.,  supra,  Bigelow,  C.  J. 

2  See  Sweeny  i'.  Old  Colony  R.  Co.,  supra,  Bigelow,  C.  J.;  Gordon  v. 
Cummings,  152  Mass.  513,  515,  Devens,  J. 

3  Plummer  v.  Dill,  156  Mass.  426 ;  Hart  v.  Cole,  id.  475,  478.  These 
cases  accordingly  distinguish  Sweeny  i'.  Old  Colony  R.  Co.,  supra,  and 
like  decisions. 

4  See  the  cases  just  cited. 


Chap.  XVIII.  §  10.]  NEGLIGENCE.  363 

laying,  or  at  a  college  celebration,  a  religious  conference/  or 
the  like.  But  it  seems  that,  where  there  is  an  element  of 
benefit  expected  by  the  owner  of  the  premises  or  other  li- 
censor, the  invitation  carries  with  it  the  duty  not  to  be  guilty 
of  negligence  in  regard  to  danger  known  to  him. 

742.  Where  the  harm  arises  by  reason  of  a  defective  condi- 
tion of  the  occupant's  premises,  it  must  be  shown  that  the 
occupant  had  notice  of  the  defect  before  the  dam-  Notice  of 
age  was  sustained. ^  For  example:  The  defend-  defect, 
ant  is  proprietor  of  a  hotel,  containing  in  one  of  the  passage- 
ways a  glass  door,  the  glass  in  which  has  gradually  become 
loosened  and  insecure ;  but  the  defendant  is  not  aware  of  the 
fact,  nor  is  he  in  fault  for  not  knowing  it.  The  glass  falls 
out  as  the  plaintiff  opens  the  door,  and  the  plaintiff,  a  visitor 
merely,  is  injured.     The  defendant  is  not  liable.^ 

743.  The  case  of  a  person  entering  upon  the  premises  of 
another  as  a  customer,  on  purposes  of  business,  is  a  stronger 
one  against  the  occupant  than    that  of  a  person 

invited  to  enter  for  hospitality,  friendship,  or 
benevolence.  A  greater  degree  of  care  ought  to  be  taken  to 
protect  such  a  person  than  one  to  whom  only  an  invitation 
was  given.  This  is  no  gift,  to  be  enlarged ;  it  may  even  be 
the  duty  of  the  customer  to  enter,  and  not  merely  his  conven- 
ience. A  master  may  require  his  servant  to  go  to  a  neigh- 
boring shop  for  provisions;  an  officer  may  be  required  to 
enter  upon  premises  to  make  a  levy.  And  the  right  to  pro- 
tection should  and  does  cover  both  entering  and  leaving  the 
premises.^ 

744.  It  is  clear  that  the  owner  or  occupant  of  the  premises 
owes  to  customers  the  duty  to  keep  the  premises  in  such 
repair  or  condition  as  to  enable  them  to  go  thereon  for  the 

1  See  Davis  v.  Central  Congregational  Soc,  129  Mass.  367,  an  extreme 
case  of  the  kind. 

2  Welfare  v.  London  &  B.  Ry.  Co.,  L.  R.  4  Q.  B.  693;  Southcote  v. 
Stanley,  1  H.  &  N.  247. 

3  Southcote  V.  Stanley,  supra. 

4  Chapman  v.  Rothwell,  El.  B.  &  E.  168,  infra. 


364  LAW   OF   TORTS.  [Part  III. 

transaction  of  their  business  in  the  usual  manner  of  customers ; 
and  that,  if  injury  happen  by  reason  of  the  improper  state  of 
the  premises,  of  which  fact  the  occupant  has  notice,  he  will 
be  liable.  Or,  as  the  rule  has  been  stated  from  the  bench, 
the  owner  or  occupant  of  premises  is  liable  in  damages  to 
those  who  come  to  it,  using  due  care,  at  his  invitation  or  in- 
ducement, express  or  implied,  on  any  business  to  be  trans- 
acted with  or  permitted  by  him,  for  an  injury  occasioned  by 
the  unsafe  condition  of  the  premises  or  of  the  access  thereto, 
which  is  known  by  him  and  not  by  them,  and  which  he  has 
negligently  suffered  to  exist,  and  has  given  them  no  notice  of.^ 
For  example :  The  defendant,  proprietor  of  a  brewery,  leaves 
a  trap-door  in  a  passageway  within  his  premises,  leading  to 
his  office,  open  and  unguarded  by  night,  and  the  plaintiff's 
wife,  in  going  through  the  passageway  by  night  for  pur- 
poses of  business  with  the  proprietor,  falls,  without  fault  of 
her  own,  down  the  hole  and  is  killed.  Tlie  defendant  is 
liable.  2 

745.  In  accordance  with  the  principle  stated,  the  proprietors 
of  a  wharf,  established  for  the  use  of  the  public,  are  liable  for 
injury  sustained  by  a  vessel  by  reason  of  the  dangerous  con- 
dition of  the  place  of  landing,  known  to  the  proprietors  of  the 
wharf  and  carelessly  allowed  to  remain,  and  not  known  to 
the  plaintiff.  For  example:  The  defendants,  owners  of  a 
wharf  at  tide- water,  procure  the  plaintiff  to  bring  his  vessel 
to  it  to  be  there  discharged  of  its  cargo,  and  suffer  the  vessel 
to  be  placed  there,  at  high  tide,  over  a  rock  sunk  and  con- 
cealed in  the  adjoining  dock.  The  defendants  are  aware  of 
the  position  of  the  rock  and  of  its  danger  to  vessels ;  but  no 
notice  of  its  existence  is  given,  and  the  plaintiff  is  ignorant 
of  the  fact.  With  the  ebb  of  the  tide,  the  vessel  settles  down 
upon  the  rock  and  sustains  injury.  The  defendants  are  guilty 
of  a  breach  of  duty  and  are  liable  for  the  damage.^ 

1  Carleton  v.  Franconia  Iron  Co.,  99  INIass.  216,  Gray,  J. 

2  Chapman  v.  Rothwell,  El.  B.  &  E.  168;  Freer  v.  Cameron,  4  Rich. 
228. 

8  Carleton  v.  Franconia  Iron  Co.,  supra;  The  Moorcock,  13  P.  D.  157; 
affirmed  14  P.  Div.  64. 


Chap.  XVIII.  §  10.]  NEGLIGENCE.  365 

746.  The  question  of  the  occupant's  liability  in  cases  like 
this,  will  be  affected  by  the  consideration  whether  the  injured 
party  was  fairly  authorized  under  the  circumstances  to  go 
upon  the  particular  part  of  the  premises  at  which  the  accident 
happened.  If  the  place  was  one  which  customers  usually 
frequent  without  objection,  it  will  be  assumed  that  the  party 
was  authorized  to  go  there.  For  example:  The  defendant, 
owner  of  a  shop,  situated  upon  a  public  street,  let  the  upper 
stories  thereof  to  another ;  and  an  entrance  to  the  shop  directly 
in  front  of  the  stairs  which  lead  above  is  so  constructed  and 
kept  constantly  open  that  it  is  used  for  passage  for  persons 
going  upstairs.  There  is  a  trap-door  between  the  entrance 
and  the  stairs ;  and  the  plaintiff  entering  the  place  on  business 
with  the  defendant,  and  in  the  exercise  of  due  care,  falls 
through  the  trap,  the  same  being  open,  and  is  injured.  The 
defendant  is  guilty  of  a  breach  of  duty  in  leaving  the  trap- 
door open,  and  is  liable  to  the  plaintiff.-^ 

747.  If  however  a  customer  is  injured  by  reason  of  the  bad 
condition  of  a  portion  of  the  premises  not  open  to  the  public, 
and  no  invitation  or  inducement  has  been  held  out  to  him  by 
the  owner  or  occupant  to  go  there,  he  cannot  recover  for  in- 
jury sustained  there,  though  the  place  be  frequented  by  the 
servants  of  the  occupant.  For  example :  The  defendants  are 
owners  of  a  foundry,  on  the  front  door  of  the  outer  part  of 
which  is  placed  the  sign  '  No  admittance.'  The  plaintiff 
enters  the  outer  building  to  inquire  after  certain  castings  of 
his,  and  the  defendant  tells  him  that  they  are  nearly  ready, 
and  sends  a  workman  into  the  foundry  part  of  the  building 
to  see  about  them.  The  plaintiff  follows  the  workman,  though 
not  invited,  and  though  none  but  persons  employed  there  go 
into  the  foundry,  falls  into  a  scuttle,  and  is  injured.  The 
defendant  is  not  liable. ^ 

748.  This  duty  to  customers  however  requires  the  occupant 
to  use  due  care  over  all  parts  of  his  premises  and  their  appur- 
tenances to  which  the  customer  has  need  of  access  in  the  per- 
formance of  the   business.     For  example:  The   defendants, 

1  Elliot  V.  Pray,  10  Allen,  378. 

2  Zoebisch  v.  Tarbell,  10  AUen,  385. 


366  LAW   OF   TORTS.  [Part  III. 

owners  of  a  dock,  provide  a  gangway  for  passage  from  the 
plaintiff's  vessel;  the  gangway  being  in  an  insecure  position, 
to  the  knowledge  of  the  defendants,  but  not  to  the  knowledge 
of  the  plaintiff.  The  plaintiff'  is  injured  while  properly  pass- 
ing over  the  same.      The  defendants  are  liable.^ 

749.  Workmen  too  on  ships  in  dock,  though  not  the  ser- 
vants of  the  dock  owner,  are  deemed  to  be  invited  by  him  to 
Workmen  of  a  ^^^^  ^^®  dock  and  all  appliances  provided  by  him 
third  person,  ^s  incident  to  the  use  of  the  dock.^  Indeed,  the 
owner  of  premises  may  be  liable,  though  the  business  was  not 
transacted  by  the  plaintiff  in  the  usual  way  or  place,  provided 
he  could  not  so  do  it  conveniently,  and  was  not  prohibited 
from  doing  it  as  he  did;  the  defendant  or  his  servant  seeing 
him  at  the  time.  The  plaintiff  is  not  deemed  a  bare  licensee 
in  such  a  case.^ 

750.  Where  the  injury  has  been  sustained,  not  by  reason  of 
any  improper  condition  of  the  defendant's  premises,  but  by 
Fall  down  ^  ^^^^  down  an  ordinary  stairway,  or  the  like,  the 
stairway.  defendant  is  not  guilty  of  negligence  in  leaving 
a  door  open  or  in  failing  to  give  notice  of  the  place  where 
dans^er  lies.* 


&' 


1  Smith  V.  London  Docks  Co.,  L.  R.  3  C.  P.  326. 

2  Heaven  v.  Pender,  11  Q.  B.  Div.  503,  515.  A  broad  rule  of  liability 
in  negligence  cases  was  laid  down  at  p.  509  by  Lord  Esher,  broader 
than  the  other  judges  were  willing  to  accept.  But  it  was  considered 
correct  in  Thrussell  v.  Handyside,  20  Q.  B.  D.  339,  363.  The  rule  of 
Lord  Esher  was  thus  stated  :  '  Whenever  one  person  is  by  circumstances 
placed  in  such  a  position  with  regard  to  another  that  every  one  of  or- 
dinary sense  who  did  think  would  at  once  recognize  that  if  he  did  not 
use  ordinary  care  and  skill  in  his  own  conduct  with  regard  to  those 
circumstances  he  would  cause  danger  of  injury  to  the  person  or  prop- 
erty of  the  other,  a  duty  arises  to  use  ordinary  care  and  skill  to  avoid 
such  danger.'  That  would  make  an  occupant  of  premises  liable  for  pas- 
sive negligence,  p'or  what  Heaven  v.  Pender  decides  see  Cann  v.  Wilson, 
39  Ch.  D.  39,  42.  But  Cann  t'.  Wilson  is  overruled  by  Le  Lievre  v.  Gould, 
1893,  1  Q.  B.  491. 

*  Holmes  >\  Northeastern  Ry.  Co.,  L.  R.  4  Ex.  254;  s.  c.  L.  R. 
6  Ex.  12.3,  Exch.  Ch. 

*  Wilkinson  v.  Fairrie,  1  H.  &  C.  633 ;  Gaffney  v.  Brown,  150  Mass.  479. 


Chap.  XVIII.  §  10.]  NEGLIGENCE.  367 

751.  In  regard  to  this  class  of  cases,  it  is  to  be  observed 
that,  if  there  is  no  actual  invitation  to  the  injured  person  to 
go  upon  the  premises  in  question,  in  order  to  re-  ^  .  . 
cover  damages  for  injury  sustained  he  must  have  occupier  of 
gone  upon  the  premises  for  business  with  the  occu- 
pier.^ But  this  is  not  enough.  A  man  has  no  right  to  in- 
trude himself  upon  another,  even  for  purposes  of  business. 
The  business  which  will  justify  an  entry  upon  the  premises, 
and  entitle  the  party  to  damages  for  injuries  sustained,  must, 
in  the  absence  of  an  express  invitation,  or  an  engagement  for 
services,  be  the  business  of  the  occupant^  including  business 
which  he  is  bound  to  attend  to.^  A  shopkeeper  is  bound  to  use 
due  diligence  to  keep  his  premises  in  fit  condition  for  persons 
who  go  to  him  to  buy,  but  not  for  peddlers  who  go  to  sell ;  ^ 
unless  indeed  they  are  persons  with  whom  he  is  accustomed 
to  deal  and  whom  be  expects  to  come  into  his  shop.  So  like- 
wise, under  the  same  circumstances,  he  would  (probably)  be 
liable  for  harm  to  a  creditor,  or  his  servant,  who  went  into  his 
shop  to  demand  payment  of  a  debt  due,^  but  not  to  a  beggar. 

752.  Customers,  within  the  meaning  of  the  foregoing  para- 
graphs,  appear  to  be  persons  with  whom  one  is  accustomed 

to  have  dealings,  together  with  such  as  one  has    _, 

•      1         IT  -1  T->      •  1  Meaning  of 

or  seeks  any  particular  dealing    with.       Besides    term'cus- 

these  there  are  persons  who  may  be  called  quasi-     °™^'^" 
customers,  who,  entering  for  the  benefit  of  the  occupant,  may 
be  considered  as  presumptively  invited  by  him,  and  accord- 
ingly stand  on  the  same  footing  as  customers.     This  class  will 
include  postmen,^  policemen,^  and  perhaps  firemen.^    Officers, 

1  Collis  V.  Selden,  L.  R.  8  0.  P.  495:  Hart  r.  Cole,  156  Mass.  475,477; 
Tebhiitt  r.  Bristol  &  E.  Ry-  Co.,  L.  R.  6  Q.  B.  73,  75. 

2  Hart  V.  Cole,  nt  supra.  ^  Irl. 

*  See  Tndermaur  v.  Dames,  L.  R.  1  C.  P.   274;  L.  R.  2  C.  P.  318; 
Cases.  482,  490,  491. 

5  (Gordon  v.  Cuinmings,  1.52  Mass.   513,  letter-box  for  tenants  of  de- 
fendant, on  defendant's  premises.     See  post.  p.  387. 

6  Learoyd  v.  Godfrey,  138  Mass.  315;  Parker   v.   Barnard,  135  Mass. 
116. 

'  Parker  v.  Barnard,  135  ]\Iass.  at  p.   119.     But  see  cases  in  note  2, 
infra.     There  is  difficulty  sometimes  in  deciding  whether  a  person  ia 


368  LAW  OF  TORTS.  [Part  III. 

certainly,  entering  by  request  of  the  occupant,  on  business, 
may  recover  fordamage  due  to  the  occupant's  passive  negli- 
gence.^ This  should  be  equally  true  of  persons  entering 
under  license  of  law,  whether  actually  commanded  to  enter 
or  not. 2 

§  11.   Of  Master  A>rD  Servant  :  '  Assuming  the  Risk.' 

753.  As  a  servant,  when  upon  his  master's  premises,  is 
there  by  express  invitation  of  the  master,  the  master  should 

What  duty  ^^^^^  ^^^^^  ^^^^  ^  duty  to  him  to  exercise  reasonable 
master  owes  care,  skill,  and  diligence  in  regard  to  the  condi- 
0  servan  .  ^^^^^  ^£  ^^^^  place,  except  in  so  far  as  the  servant 
may  have  exempted  his  master  from  that  duty.  The  excep- 
tion is  now  the  subject  for  consideration,  and  may  be  thus 
stated :  The  servant  exempts  his  master  from  the  duty  in 
question  ^  when  he  '  assumes  the  risk,'  as  the  phrase  is ; 
which  means,  that,  when  the  servant  takes  the  risk  freely 
and  willingly,  —  as  a  willing  man,  '  volens,'  —  he  cannot 
maintain  an  action  against  his  master  for  what  happens  from 
the  exposure.     It  is  a  case  of  consent ;  volenti  non  fit  injuria. 

754,  The  duty  of  the  master  towards  his  servant  may  now 
be  more  fully  stated  thus  :  Except  in  so  far  as  the  servant 
has  assumed  the  risk,  the  master  must  exercise  reasonable 
care,  skill,  and  diligence,  in  the  following  things,  —  to  have 
and  keep  his  premises  in  safe  condition  for  the  servant,  and, 

to  be  considered  as  standing  on  the  footing  of  a  customer.  What,  for 
instance,  is  to  be  said  of  a  person  travelling,  by  a  free  pass,  on  a  rail- 
road? See  Quimby  v.  Boston  R.  Co.,  150  Mass.  365,  and  the  cases 
therein  reviewed  ;  Rogers  v.  Kennebec  Steamboat  Co.,  29  Atl.  Rep. 
1069  (Maine) ;  Griswold  v.  New  York  R.  Co.,  53  Conn.  371. 

^  Cases  in  note  6,  supra. 

2  Parker  v.  Barnard,  105  Mass.  at  p.  119.  But  see  Gibson  v.  Leonard, 
32  N.  E.  Rep.  (111.)  182;  Beehler  t'.  Daniels,  27  L.  R.  A.  (R.  I.)  512. 
There  appears  to  be  no  such  distinction  in  cases  of  license  by  law  as  pre- 
vails in  license  by  the  party,  touching  what  may  be  called  orders  or  ranks 
of  license  (bare  licensees,  invited  licensees,  etc.). 

*  A  moral  duty  on  the  part  of  the  master  may  no  doubt  remain,  but 
it  is  of  imperfect  obligation.  Fitzgerald  v.  Connecticut  River  Paper 
Co.,  155  Mass.  155,  158,  159;  O'Maley  v.  South  Boston  Gaslight  Co., 
158  Mass.  135,  136;  Yarmouth  v.  France,  19  Q.  B.  D.  6i7,  657. 


Chap.  XVIII.  §  II.]  NEGLIGENCE.  369 

according  to  the  employment,  to  provide  and  keep  constantly 
for  him  safe  ways,  works,  machinery,  tackle,  appliances,  and 
the  like,  and  competent  men,  and  none  but  competent,  to 
carry  on  the  service  with  him.^  And  this  duty  cannot  be 
delegated,  so  as  to  exempt  the  master ;  it  is  personal.^  Ac- 
cordingly, if  the  servant  suffer  damage  by  reason  of  failure 
in  any  of  these  things,  the  master  will  be  liable.  For  ex- 
ample :  The  defendants  employ  the  plaintiff  to  lay  bricks 
for  them,  which  must  be  carried  up  over  a  scaffold  erected 
for  the  purpose  by  the  defendants.  The  materials  support- 
ing the  scaffold  are  in  unfit  condition,  to  the  knowledge  of 
both  parties.  Th&  defendants  personally,  or  by  servants  in 
charge,  direct  the  plaintiff  to  go  upon  the  scaffold,  and  the 
plaintiff  does  so,  but  not  volens ;  the  supports  give  wa}^,  and 
the  plaintiff  is  tlii'own  down  and  seriously  hurt.  The  defend- 
ants are  liable.^  Again  :  The  defendant,  a  maker  of  car- 
tridges, sets  the  plaintiff,  one  of  his  servants,  to  work  at  a 
machine  so  constructed  as  to  call  for  frequent  replacing  of 
one  of  its  constituent  parts  ;  defect  in  such  part  being  a 
defect  in  the  machine.  The  defendant  fails  to  have  the  part 
replaced  on  a  particular  occasion,  when  by  reasonable  care  in 
inspection  he  might  have  known  replacing  was  needed,  and 
have  made  the  change  ;  and  the  plaintiff,  exercising  due  care, 
sustains  injury  by  the  failure.     The  defendant  is  guilty  of 


1  See  Texas  R.  Co.  v.  Archibauld,  170  U.  S.  665  (as  to  cars  of  other 
railroarls) ;  Hanley  v.  California  Bridge  Co.,  127  Calif.  232  (safe  place 
for  work)  ;  Hennesey  v.  Bingham,  125  Calif.  627  (safe  place)  ;  Channon 
V.  Sanford  Co.,  70  Conn.  573  (safe  place);  North  Chicago  R.  Co.  v. 
Dudgeon,  184  111.  477  (safe  place)  ;  Crown  v.  Orr,  140  N.  Y.  450  ;  Bailey 
V.  Rome  R.  Co.,  139  N.  Y.  302;  Toy  v.  United  States  Cartridge  Co., 
159  Mass.  313;  lUick  v.  Flint  R.  Co.,  67  Mich.  632  ;  Fink  v.  l)es  Moines 
Ice  Co.,  84  Iowa,  321  ;  De  Pauw  Co.  v.  Stubblefield,  132  Ind.  182;  Con- 
solidated Coal  Co.  V.  Haenni,  146  111.  614  ;  Southwest  Improvement  Co. 
r.  Andrew,  86  Va.  270.  See  Cases.  479,  495,  500,  536.  On  the  duty  to 
give  warning  .see  Fox  v.  Kinney,  72  Conn.  404. 

2  Leonard  v.  Kinnare,  174  111.  532 ;  Railway  v.  Shields,  47  Ohio  St. 
387 ;  Toy  v.  United  States  Cartridge  Co.,  supra;  Fink  v.  Ues  Moines  Ice 
Co.,  supra. 

3  Roberts  v.  Smith,  2  II.  &  N.  213;  s.  c.  L.  C.  Torts,  684,  Exch.  Ch. 

24 


370  LAW   OF  TORTS.  [Part  III. 

breach  of  duty  to  the  plaintiff.^  Again  :  The  defendants  are 
proprietors  of  a  cotton  mill,  in  which  the  plaintiff  is  employed 
by  them.  Part  of  one  of  the  machines  in  the  carding-room 
consists  of  a  grooved  pulley,  over  which  a  chain  passes.  To 
one  end  of  the  chain  a  weight  is  hung.  An  extra  weight  is 
hung  by  a  raw-hide  lacing  to  a  hook  fastened  in  the  same 
chain.  This  latter  weight  did  not  come  with  the  machine, 
and  is  not  specially  intended  as  a  weight.  It  has  been  in 
use  in  aid  of  the  machine  however  for  two  j^ears,  though 
not  continually,  and  the  machine  works  successfully,  though 
not  so  well,  without  it.  By  reason  of  want  of  reasonable 
care  on  the  part  of  the  defendants,  the  lacing  breaks,  and 
the  extra  weight  falls  upon  and  injures  the  plaintiff  while 
properly  working  at  the  machine.  The  defendants  are  guilty 
of  breach  of  duty  to  the  plaintiff.^ 

755.  When  does  the  servant  assume  the  risk,  so  as  to 
exempt  the  master  from  the  duty  in  question?  The  answer 
Assuming  the  must  be  distributed  under  two  heads :  first,  in 
"*^-  regard  to  risks  assumed  in  the  contract  of  service  ; 
second,  m  regard  to  risks  otherwise  assumed. 

756.  In  virtue  of  the  contract  of  service  the  servant  pre- 
sum^jtively  assumes  the  ordinary  risks  of  the  service  ;  by 
which  is  meant  the  risks  incident  to  the  business,  or,  in  other 
words,  the  risks  without  which  it  would  be  impracticable  to 
carry  on  the  business  ;  ^  presumptively,  for  it  is  possible  that 
a  servant  might  stipulate  that  he  should  not  take  certain  of 
these  risks.  The  risks  which  are  incident  to  the  business 
will  cover  the  ordinary  condition  of  the  premises,  while  the 
work  is  going  on,  and  being  brought  to  a  close,  or  being  put 

1  See  Toy  v.  United  States  Cartridge  Co.,  159  Mass.  313,  s'l 5,  lan- 
guage, in  effect,  of  Morton,  J.  '  The  duty  of  seeing  that  such  parts  are 
not  defective  is  one  incumbent  on  the  master.  It  is  not  a  matter  of  or- 
dinary repair  from  day  to  day,  which  may  be  intrusted  to  a  servant,'  — 
that  is,  so  as  to  exempt  the  master.     Id. ;  Cases,  479. 

2  Rice  V.  King  Philip  Mills,  144  Jilass.  229. 

3  Crown  V.  Orr.  140  N.  Y.  4.50;  Cases,  495;  De  Graffe  v.  New  York 
Central  R.  Co.,  76  N.  Y.  125;  Consolidated  Coal  Co.  v.  Haenni,  146  111. 
614 ;  Cases,  500. 


Chap.  XVIII.  §  11.]  NEGLIGENCE.  371 

in  order.  It  is  obvious  that  during  such  time  the  premises, 
especially  those  within  which  extensive  industries  are  carried 
on,  must  be  more  or  less  in  disorder;  pieces  of  machinery, 
tools,  tackle,  and  other  things  used  in  the  business  must  be 
'  out  of  place  '  much  of  the  time ;  elevators,  shoots,  and  trap 
doors  will,  sometimes,  in  the  pressure  of  business,  be  left 
open  and  unguarded ;  these  and  other  exposures  of  a  danger- 
ous character,  according  to  the  business,  must,  speaking  of 
servants,  be  allowed.^  The  gj'eater  part  of  such  a  state  of 
things  might  not  be  negligence  at  all ;  some  of  it,  such  as 
the  leaving  open  and  unguarded,  elevators,  shoots,  and  trap 
doors,  might  be  a  breach  of  duty  towards  a  customer,^  while 
towards  a  servant  of  the  projorietor  it  would  not.  The  servant 
assumes  the  risk.^ 

757.  It  is  plain  inference  that  the  risk  thus  assumed  is  the 
risk  of  negligence  on  the  part  of  a  fellow-servant,  so  far  as 
that  risk  is  'ordinary;'  for  'assuming-  the  risk'  ... 

•^  /  ,  o  Ordinary  and 

does  not  mean  assuming  the  risk  of  the  maste7-^s  extraordinary 
negligence,  except  in  cases  to  be  mentioned,  and  "^  ^' 
the  servant  cannot  complain  if  he  has  suffered  by  reason  of 
his  own  negligence.  But  in  point  of  law  the  servant  is 
deemed  to  have  assumed  the  extraordinary^  as  well  as  the 
ordinary  risks  of  negligence  on  the  part  of  his  fellow-servants  ; 
no  distinction  here  is  drawn  between  the  two  kinds  of  risk. 
Indeed,  at  common  law,  all  risks  of  negligence  by  a  fellow- 
servant,  not  due  to  the  master,  are  treated  as  '  ordinary.'  It 
has  accordingly  been  laid  down  as  broad  doctrine,  at  com- 
mon law,  that  a  servant  cannot  complain  against  his  master 
of  damage  sustained  by  the  negligence  of  a  fellow-servant, 
where  the  master  himself  was  not  at  fault.^     For  example  : 

1  See  Murphy  v.  American  Rubber  Co.,  159  Mass.  266,  slippery  floor. 

2  Indermaur  v.  Dames,  L.  R.  1  C.  P.  274  ;  s.  c.  L.  R.  2  C.  P.  318, 
Exch.  Ch.;  Cases,  482,  a  very  important  authority. 

8  Id.  at  pp.  679,  680,  of  L.  C.  Torts.  See  also  Thomas  v.  Quarter- 
maine,  18  Q.  B.  Div.  685. 

*  See  L.  C.  Torts,  679,  Willes,  J. 

6  De  Freest  ;-.  Warner,  98  N.  Y.  211 ;  Consolidated  Coal  Co.  v.  HaennL 
146  111.  614 ;  Farwell  v.  Boston  R.  Co.  4  Mot.  49  ;  Cases,  508  ;  Pittsburgh 
R.  Co.  V.  Devinney,  17  Ohio  St.  197;  Northern  Pacific  R.  Co.  v.  Poirier, 


372  LAW  OF  TORTS.  [Part  ITT. 

A  switch-tender  of  the  defendants,  a  railroad  company,  who 
is  deemed  a  fellow-servant  of  the  plaintiff,  negligently  leaves 
open  one  of  his  switches,  by  reason  of  which  an  engine  of 
the  defendants  runs  off  the  track  and  injures  the  plaintiff, 
the  evidence  showing  that  the  defendants  themselves  are 
not  guilty  of  negligence  in  any  way.  The  defendants  are 
not  liable.^ 

758.  While,  however,  the  master  is  (at  common  law)  ex- 
empted from  liability  in  such  cases,  —  on  the  ground  that, 
Feiiow-ser-  because  the  servant  has  assumed  the  risk,  the 
vants.  master  is  so  far  relieved  of   duty,  —  the  courts 

have  not  agreed  in  the  definition  of  the  term  '  fellow-servant.' 
By  some  of  our  courts,  and  by  those  of  England,  the  term  is 
declared  to  include  all  persons  who  serve  the  same  master, 
work  under  the  same  control,  derive  authority  and  compen- 
sation from  the  same  source,  and  are  engaged  in  the  same 
general  business,  even  though  in  different  grades  or  depart- 
ments of  it.2  Others  of  our  courts  exclude  the  last  clause 
(concerning  different  grades  or  departments  of  the  work) 
from  the  definition;  the  plaintiff  being  held  entitled  to 
recover  if  the  injury  was  caused  by  a  servant  working  in  a 
higher   grade   or  in  a  different  department  of  the   service,^ 

167  U.  S.  48  (brakeman  and  conductor  of  railroad  train  are  fellow- 
servants)  ;  Baltimore  R.  Co.  v.  Baugh,  149  U.  S.  308 ;  Thomas  v.  Quarter- 
niaine,  18  Q.  B.  Div.  685,  692.  This  last  case  has  been  somewhat 
discussed  on  the  point  actually  decided  by  it,  but  its  general  language 
is  not  disputed. 

^  Farwell  v.  Boston  R.  Co.,  supra,  leading  case  in  this  country. 

^  Farwell  v.  Boston  R.  Co.,  supra  ;  De  Freest  v.  Warner,  supra;  Line- 
oski  V.  Susquehanna  Coal  Co.,  157  Penn.  St.  153;  New  England  R.  Co. 
V.  Conroy,  175  U.  S.  323,  and  Baltimore  R.  Co.  v.  Baugh,  149  U.  S.  368, 
overruling  Chicago  Ry.  Co.  r.  Ross,  112  U.  S.  -377. 

8  Pittsburgh  R.  Co.  v.  Devinney,  17  Ohio  St.  197,  210;  Chicago  Ry. 
Co.  V.  Ross,  112  U.  S.  377,  now  overruled  by  New  England  R.  Co.  v. 
Conroy,  supra.  The  doctrine  of  fellow-servants  (exempting  the  master) 
does  not  apply  to  cases  in  which  the  master  has  committed  to  a  servant 
any  of  those  duties  before  mentioned  which  rest  upon  the  master  per- 
sonally. 


Chap.  XVIIL§  11.]  NEGLIGENCE.  373 

as  for  instance  if  the  servant  in  a  higher  grade  were  a  sort  of 
vice-principal.' 

759.  This  subject  however  is  now  very  generally  regulated 

by  statute  (Employers'  Liability  Acts),  the  general  effect  of 

which,  si^eakiiig  freely,  is  to  overturn  the  rule  that 

statute  * 
by  the  contract  of  service  the  servant  presump-    maxim  of 

lively  assumes  the  risk  of  negligence  on  the  part  consent  not 
of  his  fellow-servants;  though  the  rule  still  ob- 
tains that  if  the  servant,  in  point  of  fact,  voluntarily  assumes 
a  risk  he  exempts  the  master  so  far  from  his  duty,  and  hence 
from  liability  for  the  consequences  of  the  exposure.  The 
maxim  volenti  non  fit  injuria  still  applies. ^  These  statutes 
vary  more  or  less  in  details,  and  cannot  be  considered 
further  here. 

760.  Thus  far  of  the  risks  which  the  servant  is  presumed 
to  have  assumed.  The  presumption  against  him  arises  be- 
cause the  risks  are  ordinary  and  incident  to  the  Extraordinary 
business.  Extraordinary  risks  stand  upon  a  dif-  "s'^s- 
ferent  footing ;  no  presumption  arises  from  entering  the 
service  that  the  servant  undertook  these.^  Still  he  may 
have  done  so.  He  may,  in  point  of  fact,  have  assumed  the 
risk  of  a  certain  unfit  condition  of  the  premises,  or  of  the 
works  or  appliances,  —  that  is,  of  the  master's  negligence,  or, 
even  under  the  Employers'  Liability  Acts,  of  the  negligence 
of  a  fellow-servant.  It  is  accordingly  laid  down  in  effect 
that  if  the  servant,  at  the  time  of  making  the  contract,  knew* 
of  the  existence  of   a   particular  extraordinary  danger,  and 

1  As  to  that  aspect  of  the  case  see  New  England  R.  Co.  r.  Conroy, 
supra ;  St.  Louis  Ry.  Co.  v.  Touhey,  67  Ark.  209 ;  Denver  R.  Co.  t-.  Sipes, 
23  Col.  226 ;  Woodson  v.  Johnston,  109  Ga.  454 ;  Sievers  v.  Peters  Box 
Co.,  1.51  Ind.  642. 

2  O'Maley  v.  South  Boston  Gaslight  Co.,  158  Mass.  135,  136 ;  Cases, 
536. 

8  Consolidated  Coal  Co.  v.  Haenni,  146  111.  614;  Cases,  500. 

*  Some  dicta  put  it  thus  :  If  the  servant  knew,  or  had  the  means  of 
knowledge,  etc.  Crown  v.  Orr,  140  N.  Y.  450 ;  Cases,  495.  But  the 
latter  clause  should  be  omitted ;  it  is  inconsistent  with  requiring  fuU 
appreciation  of  the  danger. 


374  LAW  OF  TORTS.  [Part  IIL 

fully  appreciated  1  the  same,  his  entering  into  the  contract 
amounts  to  assuming  the  risk.^  That  is,  just  as,  by  entering 
the  service,  the  servant  assumes  the  ordinary  lisks,  and  ex- 
empts his  master  so  far  from  duty,  so  now,  by  entering  the 
service  knowing  and  appreciating  the  nature  of  an  extraor- 
dinary risk,  he  assumes  that  risk,  and  exempts  his  master 
from  duty  in  regard  to  it.^  For  example :  The  defendants 
are  a  gaslight  company,  having  a  quantity  of  coal  to  be 
wheeled  under  sheds  to  a  certain  place,  over  high,  narrow 
'  runs,'  not  provided  with  guards  on  the  sides.  The  plaintiff 
enters  into  the  defendants'  service,  to  wheel  coal  over  the 
runs,  knowing  that  they  are  not  provided  with  guards,  and 
fully  appreciating  the  danger,  and  in  carefully  wheeling  over 
the  same  falls  off  the  side,  and  is  injured.  The  plaintiff 
assumed  the  risk,  and  cannot  recover  even  under  the  Em- 
ployers' Liability  Act  (in  regard  to  defective  ways,  works, 
or  machinery).*  Again:  The  defendants  are  a  railroad 
company,  having  had  in  their  employ  the  plaintiff's  intes- 
tate.    The    deceased   was    killed   by   being   thrown   from   a 

1  Ciriack  r.  Merchants'  Woollen  Co.,  151  Mass.  152;  Nofsinger  v. 
Goldman,  122  Calif.  609.  Nor  does  it  apply  where  the  harm  was  due  to 
the  combined  negligence  of  the  master  and  a  fellow-servant.  Chicago  R. 
Co.  V.  Gellison,  173  111.  264.  If  for  any  reason  the  servant  did  not  fully  ap- 
preciate the  danger,  as  for  instance  from  mental  deficiency  or  from  inexpe- 
rience, he  has  not  consented.  Ciriack  v.  Merchants'  Woollen  Co. ,  supra ; 
Consolidated  Stone  Co.  v.  Summit,  152  Ind.  297.  As  to  the  master's 
duty  to  a  servant  under  age,  see  Alabama  R.  Co.  v.  Marcus,  115  Ala.  389. 

2  Knowing  the  risk  is  not  assuming  it.  Dallemand  v.  Saalfeldt,  175 
111.  310;  Thomas  v.  Quartermaine,  18  Q.  B.  Div.  685,  696,  Bowen,  L.  J. 
See  however  Staltder  v.  Huntington,  153  Ind.  354,  368;  Wabash  R.  Co. 
V.  Ray,  152  Ind.  392,  400. 

3  Crown  V.  Orr,  140  N.  Y.  450;  Kaare  v.  Troy  Steel  Co.,  139  N.  Y. 
369;  White  v.  Witteman  Lithographic  Co.,  131  N.  Y.  631 ;  De  Forest  v. 
Jevvett,  88  N.  Y.  264;  Gibson  v.  Erie  Ry.  Co.,  63  N.  Y.  449 ;  Ragon  v. 
Toledo  R.  Co.,  97  Mich.  265;  s.  c.  91  Mich.  379 ;  Illick  v.  Flint  R.  Co., 
67  Mich.  632;  Batterson  v.  Chicago  Ry.  Co.,  53  Mich.  125;  O'Neal  v. 
Chicago  Ry.  Co.  132  Ind.  110;  Ilayden  v.  ]\Ianuf.  Co.,  29  Conn.  548; 
Consolidated  Coal  Co.  v.  Haenni,  146  111.  614  ;  Kohn  v.  McNulta,  147 
U.  S.  238. 

*  O'Maley  V.  South  Boston  Gaslight  Co.,  158  Mass.  135 ;  Kaare  v.  Troy 
Steel  Co.,  139  N.  Y.  369. 


Chap.  XVIII.  §  11]  NEGLIGENCE.  375 

hand-car,  which  he  and  other  servants  of  the  defendants 
were  propelling  on  the  defendants'  road.  One  handle  of  the 
walking-beam  of  the  car  was  broken  several  weeks  before, 
but  the  defendants'  servants  continue  to  use  the  car,  usinsr 
the  handle  of  a  pick  or  a  crowbar  in  place  of  the  broken  part, 
A  crowbar  is  being  used  on  the  day  of  the  accident,  when  a 
train  coming  up  behind  on  the  same  track,  the  servants,  in- 
cluding the  deceased,  try  to  run  the  car  to  a  distant  switch, 
instead  of  removing  it  to  another  track.  The  men  work  the 
machinery  with  great  force ;  live  being  engaged,  two  more 
than  usual.  This  wrenches  and  breaks  the  lever  or  beam, 
and  the  plaintiff's  intestate  is  tlirown  under  the  car  and 
killed.  The  deceased  had  full  knowledge  and  appreciation 
of  the  defect,  and  voluntarily  continued  in  the  service,  with- 
out making  objection.  The  defendants  owed  no  duty  in  the 
matter  to  the  plaintiff's  intestate ;  he  assumed  the  risk.^ 
Again :  The  defendant  is  receiver  of  a  railroad  company,  in 
which  the  plaintiff's  intestate  had  been  employed  as  switch- 
man and  car-coupler  for  nearly  two  years  in  the  company's 
freight-3'ard.  This  yard  is  drained  by  many  small  open 
ditches,  running  across  the  tracks  between  the  ties,  all  of 
which  are  in  plain  sight,  were  well  known  to  the  deceased, 
and  existed  when  he  entered  the  service.  While  coupling  cars 
in  the  yard,  the  deceased  steps  into  one  of  the  ditches,  falls, 
and  is  killed  by  the  cars.     The  deceased  assumed  the  risk.^ 

761.    Further,  the  servant  may  have  assumed  the  risk  of 
extraordinary  dangers  arising  after  the  contract  was  made,, 
and  not  embraced  in  the  contract  of  service  at  all ; 
it  is  a  question  of  fact  whether  he  did.     And  the  ^ary  risks 
question,  as  in   all  other  cases  of  extraordinary  j^e^coftracu 
dangers,  is   whether  he  exposed   himself  freely, 

1  Po^\-ers  V.  Xew  York  R.  Co.,  98  X.  Y.  274.  The  servant  should 
know  the  danger  as  well  as  the  defects  before  he  can  be  said  to  have 
assumed  extraordinary  risks.  Consolidated  Coal  Co.  v.  Haenni,  It6  111. 
614 ;  Cases,  500. 

2  De  Forest  v.  Jewett,  88  N.  Y.  264.  See  Gibson  v.  Erie  Ry.  Co., 
63  N.  Y.  449  ;  Kohn  v.  McNulta,  147  U.  S.  238. 


376  LAW   OF   TORTS.  [Part  III 

knowing  and  fully  appreciating  the  danger.  If  he  did  he 
cannot  recover  against  his  master.  For  example :  The  de- 
fendants, proj^rietors  of  a  woollen  mill,  send  the  plaintiff  to 
a  dimly  lighted  part  of  a  room  therein,  between  running 
gear  of  the  machinery  so  placed  that  it  might  easily  catch 
the  plaintiff's  clothing  and  pull  him  into  the  wheels.  The 
machinery  in  that  part  of  the  room  is  in  plain  sight.  The 
plaintiff  has  not  however  been  employed  in  that  part  of  the 
room  ;  he  is  not  warned  of  the  danger,  though  warning  might 
have  been  given ;  but  he  goes  to  the  place  freely,  his  clothing 
is  caught  in  the  machinery,  and  he  is  hurt.  The  plaintiff,  if 
he  knew  and  fully  appreciated  the  danger,  assumed  the  risk, 
and  the  defendants  are  not  liable.^ 

762.    Where   the   extraordinary   danger   was    contempora- 
neous with  the  contract  of  service,  the  plaintiff  consents  to 

Extraordi-  ^^^  ^'^^^'  ^^  ^®  have  seen,  if  he  then  knew  and 
nary  risks  fully  appreciated  the  danger ;  his  consent  to  the 
neous  with  risk  follows  from  his  entering  the  service  with 
contract.  knowledge  and  appreciation  of  the  danger.^     It  is 

not  however  the  servant's  knowledge  and  appreciation  of  the 
danger  that  make  his  consent ;  it  is  the  entering  the  service 
with  such  knowledge  and  appreciation.  But  where  the  ex- 
traordinary danger  arises  afterwards,  the  servant's  knowledge 
and  appreciation  of  it,  and  then  entering  the  danger,  do  not 
necessarily  constitute  consent,  even  though  he  did  not  protest, 
object,  or  complain.^  For  example  :  The  defendant,  a  board- 
ing-house keeper,  employs  the  plaintiff,  in  June,  as  a  domestic 
servant,  A  flight  of  stairs  leads  from  the  kitchen  of  the 
defendant's  house,  on  the  outside  of  the  same,  to  the  back 
yard,  down  which  the  plaintiff  has  to  go  in  the  course  of  her 
service.  The  stairs  are  open  and  uncovered  on  the  side 
towards  tlie  back  yard,  but  covered  overhead,  except  that  a 
skylight  there  has,  before  the  plaintiff's  service  began,  lost 

1  Ciriack  v.  Merchants'  Woollen  Co.,  151  Mass.  152, 

2  Fitzgerald  v.  Connecticut  River  Paper  Co,,  155  Mass,  155;  Mahoney 
V.  Dore,  id,  513;  O'Maley  v.  South  Boston  Gaslight  Co.,  158  Mass.  135; 
Cases,  536. 

*  See  however  McFarlan  Carriage  Co.  t.  Potter,  153  lud.  107,  112. 


Chap.  XVIII.  §  11  ]  NEGLIGENCE.  377 

several  panes  of  glass.  It  is  now  March,  and  rain,  snow,  and 
sleet  have  come  in  and  fallen  upon  the  stairs.  The  steps  in 
consequence  are  icy.  The  weather  is  cold,  and  it  is  snowing. 
It  is  evening ;  the  stairway  is  not  lighted,  though  the  plaintiff 
has  been  over  it  during  the  day,  and  knows  its  condition  and 
fully  appreciates  the  danger.  She  attempts  to  go  down,  in 
the  discharge  of  her  duties  as  servant,  taking  hold  of  the 
railing,  trying  to  go  safely,  and  exercising  due  care,  but 
slips,  falls,  and  is  hurt.  It  cannot  be  held  as  matter  of  law 
that  the  plaintiff  assumed  the  risk  ;  whether  she  did  assume 
it  or  not  is  a  question  of  fact,  and  it  may  be  found  that  she 
did  not  go  freely,  in  which  case  the  defendant  owes  a  duty  to 
the  plaintiff  which  has  been  broken.^ 

763.  It  cannot  have  escaped   notice   that  the  expression 

'  assuming  the  risk '  is  used  in  the  law  in  a  technical  and  hence 

.     ,,      special  sense.     In  popular  speech  it  is  common  to 
Assuming'  tne  i    i.  j. 

risk  a  techni-  Say  that  One  has  '  taken  the  risk,'  or,  '  run  the  risk,' 
ca    erm.  ^yhen  the  meaning  merely  is  that  one  has  incurred 

a  great  danger,  as  wliere  one  rushes  before  an  approaching 
railway  train  to  save  a  child  on  the  track.^  It  is  not  ordi- 
narily meant  in  such  cases  that  the  person  exposing  himself 
to  danger  has  assumed  the  risk  in  the  sense  of  exempting 
the  one  in  control  from  the  duty  of  care,  as  we  have  seen  is 
the  legal  meaning  of  the  expression. ^ 

764.  A  final  and  important  remark  should  be  made.  The 
doctrine  under  consideration  is  not  a  doctrine  of  contributory 

1  Mahoney  v.  Dore,  155  Mass.  513.  See  also  the  similar  cases  of  Fitz- 
gerald V.  Connecticut.  River  Paper  Co.,  id.  155,  and  Osborne  v.  London 
Ry.  Co.,  21  Q.  B.  Div.  220. 

2  See  Eckert  v.  Long  Island  R.  Co.,  43  N.  Y.  502.  The  rescue  of  a 
child  in  this  case  was  treated  on  the  footing  of  a  question  of  negligence 
in  the  plaintiff's  intestate,  killed  in  the  act,  not  as  a  question  of  assuming 
the  risk.  A  majority  of  the  court  held  that  under  the  circumstance  the 
deceased  had  not  been  guilty  of  negligence ;  the  distinction  being  taken 
between  attempts  to  save  life  and  attempts  to  save  property. 

8  The  rule  as  to  trespassers  and  bare  licensees  may,  it  seems,  be  put 
upon  the  ground  of  assuming  the  risk. 


878  LAW  OF  TORTS.  [Part  lU 

negligence.  The  servant,  or  indeed  one  not  a  servant,  may 
-,    _,   ^         assume  the  risk  so  as  to  bar  any  rig-ht  of  action 

Contributory      t       i  .  ,  ,  Jo 

negligence  by  him,  though  he  was  not  in  the  least  negligent 
IS  mguis  e  ■  ^^  ^i^g  time.^  Contributory  negligence,  which 
in  fact  often  exists  in  these  cases,  makes  an  additional  and 
distinct  defence.  The  language  of  the  authorities  however 
sometimes  fails  to  observe  the  distinction.^ 

§  12.   Of  Independent  Contractors:  Control: 
'  Collateral  '  Negligence. 

765.  A  man  may  employ  another  to  do  work  for  him  on  a 
footing  of  independence  on  the  part  of  the  latter,  concerning 
Independent  ways  and  means,  subject  only  to  the  terms  of 
contractor  dis-  the    barrain    made,    and   free   accordingly   from 

tinffuished  o  '  o  J 

from  servant  control  by  the  employer.  The  person  so  em- 
or  agent.  ployed    is    therefore    neither    the    servant  nor, 

legally  speaking,  the  agent  of  the  one  who  has  employed 
him.  This  will  be  true  of  all  cases  of  the  kind,  whatever  the 
business,  and  however  humble,  at  least  in  sound  principle. 
Independence  of  the  employer  in  ways  and  means  is  incon- 
sistent with  the  relation  of  master  and  servant  or  principal 
and  agent ;  for  such  relations  in  themselves,  as  we  have  else- 
where seen,3  are  relations  of  dependence,  at  least  in  the  sense 
of  a  right  in  the  employer  to  interfere  and  direct  at  all 
times. 

766.  In  former  times  this  distinction  was  not  always  clearly 
grasped,  with  the  result  that  the  employer  was  sometimes 

held  liable  for  the  consequences  of  negligence 
tion  formerly  by  persons  who  are  now  commonly  called  inde- 
overiooked.       pendent  contractors,  as  if  they  were  servants  or 

1  Mellor  V.  Merchants'  Manuf.  Co.,  150  Mass.  362,  303. 

2  Note  a  want  of  clearness  on  this  point  in  Fitzgerald  v.  Connecticut 
River  Paper  Co.,  155  Mass.  155,  158,  159. 

It  may  be  added  that  the  principles  relating  to  the  subject  of  assum- 
ing the  risk,  as  set  forth  above,  are  now  recognized  by  most  if  not  all  of 
our  courts,  though  in  the  application  of  them  more  or  less  conflicting 
dicta  may  be  found,  and  some  conflicting  conclusions.  The  cases  are 
innumerable. 

8  Ante,  pp.  36-41. 


Chap.  XVIII.  §  12.]  NEGLIGENCE.  379 

agents.^  But  the  better  view  finall}-  j)revailecl,  and  such 
cases  were  put  upon  a  footing  of  their  own.  The  employer 
accordingly  is  held  not  liable  for  damage  where  the  contractor, 
whether  personally  or  by  his  servants,  was  guilty  of  negli- 
gence as  a  mere  matter  of  detail  in  the  course  of  the  employ- 
ment, as  he  would  be  if  the  contractor  was  a  servant  or  an 
agent  of  his.^  This  is  now  the  settled  doctrine.^  For  ex- 
ample :  The  defendant  employs  a  competent  independent 
contractor  to  repair  his  chimneys  ;  the  latter  having  entire  con- 
trol over  the  details  of  the  work,  though  the  former  retains 
the  right  of  control  over  the  premises.  In  the  course  of  the 
work,  by  the  negligence  of  the  defendant's  servants,  bricks 
fall  from  the  building  upon  which  the  work  is  going  on,  and 
hit  and  injure  the  plaintiff.  The  defendant  is  not  liable.* 
Again  :  The  defendant,  a  telephone  company,  employs  an  in- 
dependent contractor  to  connect  with  lead  and  solder  certain 
tubes  through  which  the  wires  run.  To  do  this  it  is  neces- 
sary to  create  a  flare  from  a  benzoline  blow-lamp,  and  the 
flare  cannot  be  made  without  applying  heat  to  the  lamp.  A 
servant  of  the  defendant  uses  for  the  purpose  a  lamp  which 
he  should  have  known  was  defective.  To  heat  the  lamp 
quickly,  he  dips  it  into  a  pot  of  molten  solder,  whereupon, 
because  of  the  defect  in  the  lamp,  an  explosion  takes  place, 

1  Bush  V.  Steinman,  1  Bos.  &  P.  404  ;  Hilliard  v.  Richardson,  3  Gray, 
349 ;  L.  C.  Torts,  636. 

2  Hilliard  v.  Richardson,  supra ;  Boomer  v.  Wilber,  57  N.  E.  Rep. 
1004  (Mass.). 

2  Bonaparte  v.  Wiseman,  89  Md.  12;  City  R.  Co.  v.  Moores,  80  Md. 
352;  Deford  v.  State,  30  Md.  179;  Ohio  Southern  R.  Co.  v.  Morey,  47 
Ohio  St.  207;  Boomer  v.  Wilber,  supra;  Hilliard  v.  Richardson,  supra; 
Conners  v.  Hennessey,  112  Mass.  96;  Gorham  v.  Gross,  125  Mass.  232, 
240;  Sturges  v.  Theological  Education  Soc,  130  Mass.  414;  Harding  v. 
Boston,  163  Mass.  14;  Cuff  v.  Newark  R.  Co.,  6  Vroom,  17;  Brown  v. 
Accrington  Cotton  Co.,  3  H.  &  C.  511;  Hardaker  v.  Idle  District  Coun- 
cil, 1896,  1  Q.  B.  335,  341,  352,  C.  A.  ;  Tenny  v.  Wimbledon  District 
Council,  1899,  2  Q.  B.  72,  C.  A.;  Ilalliday  v.  National  Telegraph  Co., 
1899,  1  Q.  B.  221.     See  ante,  pp.  41-43. 

*  Boomer  v.  Wilber,  supra.  The  negligence  was,  said  the  court,  in  a 
mere  detail  of  the  work.  The  contract  did  not  contemplate  such  negli- 
gence, and  the  negligent  party  is  the  only  one  to  be  held. 


380  LAW  OF  TORTS.  [Part  III. 

and  the  plaintiff,  passing  by,  is  hurt.  The  defendant  is  not 
liable.^ 

767.  On  the  other  hand  the  employer  will  be  liable  for  the 
negligence  of  the  independent  contractor,  or  of  his  men, 
where  the  negligence  is  in  the  nature  of  a  vice  in  the  work? 
For  example :  The  defendant  employs  an  independent  con- 
tractor to  construct  a  party-wall  between  his  land  and  land  of 
the  plaintiff,  half  on  the  land  of  each.  After  the  completion 
of  the  wall,  it  falls  because  of  defects  in  its  construction,  and 
the  plaintiff  suffers  damage  thereby.    The  defendant  is  liable.^ 

768.  This  proceeds  upon  the  ground  that  the  duty  under- 
taken  by  the    contractor  is  really  a  duty  resting  upon   the 

employer ;  and  resting  upon  the  employer,  it 
doctrine:  cannot  be  delegated  by  him  to  another  without 

dutf^-^contrV  ^^^®  consent  of  the  person  or  persons,  usually  the 
vice  in  the        public,  to  whom  he  owes  the   duty.     Thus  the 

employer,  if  he  will  have  a  drain  made,  or  a  wall 
built,  owes  the  duty  to  others  to  have  a  good  and  sufficient 
drain  or  wall  constructed,  —  a  drain  that  will  carry  off  its 
contents  properly,  a  wall  that  will  stand  so  far  as  proper  con- 
struction can  make  it  stand.  He  owes  this  duty  to  all  persons 
who  may  be  affected  by  the  construction  of  a  bad  drain  or 
wall,  in  other  words  by  a  vice  in  the  work;  and  he  does  not 
rid  himself  of  the  duty  by  employing  an  independent  con- 
tractor to  do  the  work,  for  that  is  no  consent,  by  the  persons 
harmed,  to  a  bad  job.  And  such  vice  in  the  work,  it  may 
be  added,  includes  an  undertaking  which  itself  is  a  negligent 

1  Ilalliday  v.  National  Telephone  Co.,  supra.  Wills,  J.  :  'If  common 
care  had  been  used,  there  was  no  danger  to  any  one  in  the  work  ordered 
by  the  defendant  to  be  done.' 

2  See  cases  in  note  3,  p.  379. 

8  Gorham  v.  Gross,  125  Mass.  232.  Gray,  C.  J. :  '  Where  the  very 
thing  contracted  to  be  done  is  imperfectly  done  .  .  .  the  employer  is  re- 
sponsible for  it.'  The  distinction  is  between  'negligence  in  a  matter 
collateral  to  the  contract  and  '  cases  '  in  which  the  thing  contracted  to  be 
done  causes  mischief.'  Bonaparte  r.  Wiseman,  89  Md.  12,  21.  See  also, 
for  the  ground  of  the  rule,  Ohio  R.  Co.  v.  Morey,  47  Ohio  St.  207,  214; 
City  R.  Co.  V.  Moores,  80  Md.  352. 


Chap.  XVIII.  §  12.]  NEGLIGENCE.  381 

thing,  as  in  agreeing  to  build  a  wall  without  a  proper  founda- 
tion or  other  support. 

769.  It  will  be  observed  that  the  duty  in  question  is  a  duty 
of  one  in  control^  not  to  be  negligent  therein,  rather  than  the 
general  duty  not  to  be  guilty  of  negligence.  The  employer, 
when  liable  for  the  independent  contractor's  negligence,  is 
liable  because  he  cannot  divest  himself  of  the  duty  to  exer- 
cise control  over  having  a  job  done  that  shall  be  safe  to 
others.  He  has  the  right  to  see  that  the  contractor  does  not 
undertake  or  turn  out  a  dangerous  piece  of  work;  for  that 
purpose  he  is  in  control,  or  rather  has  the  povjer  of  control, 
over  the  work,  notwithstanding  the  fact  that  he  has  committed 
the  work  to  an  independent  contractor.  The  employer  could, 
for  instance,  put  a  stop  to  the  contractor's  creating  a  nuisance 
of  the  work ;  the  contractor  is  in  control,  at  most,  only  so  far 
as  he  keeps  to  a  contract  which  is  itself  proper. 

770.  But  in  a  case  of  negligence  of  the  first  kind  spoken  of, 
negligence,  that  is  to  say,  by  the  independent  contractor  (or 
his  men)  merely,  in  the  course  of  the  employment,  collateral 
and  not  due  to  any  vice  in  the  work  or  undertak-  negligence, 
ing,  the  employer  is  not  in  control ;  it  is  only  a  matter  of  ways 
and  means,  of  which  the  contractor  is  dominus.  Negligence 
of  this  kind  is  coming  to  be  called  '  collateral '  negligence. ^ 

771.  It  may  of  course  be  difficult  sometimes  to  determine 
whether  the  employer  has  retained  the  power  to  control  the 
person  employed,  in  the  absence  of  terms  of  con-  Difficulties  of 
trol  in  the  contract ;  and  there  may  accordingly  be  ^'^^  doctriue. 
doubt  in  regard  to  the  soundness  of  some  of  the  decisions, 
especially  in  regard  to  cases  of  humble  employment.^     But 

'  The  term  was  first  used  by  Lord  Blackburn,  in  Dalton  v.  Angus, 
6  App.  Cas.  740,  829,  and  has  been  adopted  in  the  recent  English  cases 
and  in  many  of  our  own.  See  Hardaker  ?'.  Idle  Di-strict  Council,  1896, 
1  Q.  B.  335,  342  ;  Bonaparte  v.  Wiseman,  89  Md.  12,  21 ;  Ohio  R.  Co.  v. 
Morey,  47  Ohio  St.  207;  Gorham  v.  Gross,  125  Mass.  232,  240.  The  sub- 
ject of  the  present  chapter  being  negligence,  we  do  not  here  consider 
cases  of  illegal  works.     See  for  such  cases  ante,  p.  43. 

2  E.  g.  Bracket  v.  Lubke,  4  Allen,  138,  where  a  carpenter  employed 


382  LAW   OF   TORTS.  [Part  III. 

such  decisions  do  not  impeach  the  principle.  There  may  be 
another  difficulty  in  cases  in  which,  while  the  contractor's 
calling  is  naturally  an  independent  one,  restrictions  are  placed 
upon  it  which  give  the  emplo3'er,  or  another  as  his  agent,  for 
instance  an  architect,  power  at  any  time  to  stop,  or  change, 
or  direct  the  work.  Suppose  that  in  such  a  case  the  employer 
does  not  avail  himself  of  his  rights,  and  that  by  reason  of  the 
'  collateral '  negligence  of  the  contractor  the  plaintiff  suffers 
harm,  will  the  employer  be  liable  ?  The  question  has  been 
answered  in  the  negative.^ 

772.  What  has  been  said  in  the  foregoing  paragraphs  applies 
equally  to  the  question  of  the  liability  of  the  employer,  or  of 
Sub-contrac-  ^^^^  Contractor,  for  the  negligence  of  a  sub-con- 
tors.  tractor.2  The  whole  subject  has  been  summed 
up  in  a  passage  elsewhere  quoted :  '  In  ascertaining  who  is 
liable  for  the  act  of  a  wrongdoer  you  must  look  to  the  wrong- 
doer himself,  or  to  the  first  person  in  the  ascending  line  who 
is  the  employer  and  has  control  over  the  work.  You  cannot 
go  further  back  and  make  the  employer  of  that  person  liable.'  ^ 

773.  The  doctrine  of  control  leads  to  some  kindred  ques- 
tions. Is  the  independent  contractor  himself  liable  for  vice 
New  questions  ^^  ^^^^  work  after  he  has  turned  over  the  work  to 
raised.  \^[i^  employer  ?  *     Is  a  vendor  of  chattels  Uable  to 

to  repair  au  awning  is  called  and  treated  as  a  servant  of  the  employer. 
But  surely  the  carpenter's  vocation  is  'independent.'  See  Conners  v. 
Hennessey,  112  Mass.  9G.  This  case  lays  down  a  general  test  of  inde- 
pendence ;  which  perhaps  should  not  be  taken  very  strictly. 

1  Frassi  v.  McDonald,  122  Calif.  400.  See  Hardaker  v.  Idle  District 
Council,  1896,  1  Q.  B.  335,  which  perhaps  is  a  case  of  the  kind ;  hut  it 
was  decided  on  the  ground  that  there  was  a  vice  in  the  work.  See  also 
Harding  v.  Boston,  163  Mass.  14. 

2  Cuff  V.  Newark  R.  Co.,  6  Vroom,  17;  Rapson  v.  Cubitt,  9  M.  &  W- 
710  ;  Overton  v.  Freeman,  11  C.  B.  867 ;  Murray  v.  Currie,  L.  R.  6  C.  P. 
24 ;  Bigelow's  L.  C.  Torts,  657. 

8  Murray  v.  Currie,  L.  R.  6  C  P.  24,  27,  Willes,  J. ;  ante,  p.  42.  First 
quoted  as  a  general  doctrine  of  tort,  it  is  here  quoted  as  a  doctrine  of 
negligence. 

■*  Of  course  he  remains  liable  for  any  collateral  negligence  of  his, 
until  the  Statute  of  Limitations  exempts  him. 


Chap.  XVIII.  §  13.]  NEGLIGENCE.  383 

persons  other  than  the  buyer  from  him,  for  his  own  negli- 
gence ?  Is  a  landlord  of  leased  premises  liable  to  third  per- 
sons who  have  suffered  damage  Ijy  reason  of  any  negligent 
state  of  the  same?     These  questions  in  order. 

§  13.   Of  Completion  of  Work:  Sale  of  Chattel: 
Lease  of  Pkemises. 

774.  The  independent  contractor  has  completed  the  drain, 
the    wall,  the    elevator,   the    gallery,   the   amphitheatre,   the 
tenement  house,  and  turned  over  the  work  to  the 
employer,  who  accepts  it ;  there  is  a  vice  in  the  workTurned 
work  which  now  causes  damage  to  another ;    is  oyer :  inspec- 
the  contractor  liable?     If  he  has  contracted  for 

a  right  of  inspection,  he  may  well  be ;  for  the  right  to  inspect 
(and  amend,  which  follows)  should  give  him  sufficient  power 
of  conti'ol,  unless  perhaps  the  intervals  of  inspection  are  so 
far  apart  or  are  hampered  by  such  restrictions  as  to  make  the 
right  but  nominal.  But  it  should  be  observed  that  the  con- 
tractor's liability  rests  at  the  same  time  upon  the  assumption 
that  the  damage  happens  to  one  entitled  to  exemption  from 
harm  by  the  vice  in  the  work ;  which  is  only  another  way  of 
saying  that  the  contractor  must  have  owed  a  duty  to  the  par- 
ticular person  hurt. 

775.  But  suppose  that  the  contractor  has  no  right  to 
inspect?  It  may  be  suggested  that  the  contractor  will  still 
be  liable  for  the  sake  of  preventing  circuity  of  circuity  of 
action.^  The  owner  is  liable  to  the  person  hurt,  action, 
and  the  contractor  is  (or  may  be)  liable  over  to  the  owner; 
therefore  the  contractor  is  liable  to  the  person  hurt  —  that 
would  be  the  case.  But^  the  soundness  of  the  suggestion 
may  be  doubted.  To  make  the  contractor's  liability  turn 
upon  his  liability  to  the  employer  would  be  to  make  it  subject 
to  any  discharge  which  the  employer  may  have  granted  to 
him,  as  in  the  settlement  of  the  business.  The  test  should 
be  whether  the  contractor  owes  a  duty  to  the  plaintiff ;  if  he 

1  Compare  Lowell  v.  Spaulding,  4  Ciish.  277,  landlord  and  tenant,  and 
qu.  a.s  to  the  soundness  of  the  suggestion.     See  infra. 


384  LAW   OF  TORTS.  [Part  III. 

does  owe  the  duty,  there  is  no  place  for  the  doctrine  of  circuity 
of  action ;  if  he  does  not  owe  the  duty,  no  notion  of  prevent- 
ing circuity  should  make  him  liable. 

776.  The  case  should  then  stand  upon  the  principle  of  duty. 

Duty  the  contractor  owed  to  the  plaintiff  while  the  work  was 

T>  ,  . .  -  in  his  hands  ;  and  that  duty  he  could  not  delegate  ^ 
Delegation  of  '  ^^  "^ 

duty:  extinc-  to  the  owner  b}^  settlement  of  the  business  and 
u  y.  i^m-i^ij^g  over  the  work.  So  long  as  the  duty 
exists,  it  cannot  be  delegated,  so  as  to  divest  the  person  owing 
it  of  its  binding  force,  without  the  consent  of  the  person  to 
whom  it  is  owed.  But  a  duty  may  be  extinguished  in  certain 
ways  without  such  person's  consent.  The  dangerous,  thing 
may  be  repaired  and  made  safe.  Whether  completing  and 
turning  over  the  work  extinguishes  the  duty  will  perhaps 
turn  upon  the  question  whether  the  vice  in  the  work  was 
intended,  or  what  in  the  way  of  negligence  comes  to  the  same 
thing,  was  due  to  reckless  or  wanton  disregard  of  rights.^ 
Perhaps  the  duty  is  extinguished  where  the  negligence  of  the 
contractor  was  passive,  that  is,  where  he  did  not  in  fact  know 
of  the  vice  in  the  work,  though  he  ought  to  have  found  it  out. 

777.  The  next  question  is  of  the  liability  of  the  vendor  of  a 
chattel  to  one  who  did  not  buy  from  him,  for  damage  caused 
Eemote  ven-  ^^  ^^^^  negligence  in  respect  of  the  chattel.  This 
dor  of  danger-  question  usually  arises  in  relation  to  the  effect  of 
ous  ar  ic  es.  ^^^^  chattel's  passing  through  other  hands  before 
it  reaches  the  plaintiif,  and  in  that  aspect  is  considered  fur- 
ther on.  3  It  will  perhaps  be  enough  at  this  place  to  say  that 
for  negligence  in  the  sense  of  want  of  due  care,  that  is  want 
of  knowledge  when  one  should  know,  or  passive  negligence, 
and  that  alone,  the  vendor's  liability  does  not  extend  to  others 
than  the  buyer  and  those  who,  according  to  the  clear  purpose 
of  the  seller  and  the  buj-er,^  are  to  use  the  chattel.     The  sale 

1  There  would  be  no  need  of  delegation  to  account  for  the  liability  of 
the  employer  ;  the  nature  of  his  liability  we  have  already  seen. 

'  Compare  Maynard  v.  Boston  R.  Co.,  115  Mass.  458,  Gray,  C.  J.  ; 
Southcote  V.  Stanley,  1  H.  &  N.  247,  Bramwell,  B. 

3  Infra,  §  16. 

4  Langridge  v.  Levy,  2  M.  &  W.  519 ;  s.  c.  4  M.  &  W.  338. 


Chap.  XVIII.  §  18.]  NEGLIGENCE.  385 

and  delivery  of  the  chattel  puts  the  article  out  of  the  seller's 
control  and  also,  in  cases  of  mere  passive  negligence,  destroys 
the  duty;  unless  the  very  dangerous  nature  of  the  chattel 
imposes  a  special  duty  upon  the  vendor,  —  of  which  in  an- 
other section.^ 

778.  The  last  question  is  of  the  liability  of  a  landlord  of 

leased  premises  to  third  persons  who  have  suffered  damage 

by  reason  of  the  defective  condition  of  the  prem-  ., 

•^  .  .  ^  Lease  of  prem- 

ises,  due   to    negligence.       But  it  must   first   be  ises:  duty  of 

asked,  whose  negligence  it  was,  the  landlord's  or    ^®^°^' 

the  tenant's,  unless  it  was  the  negligence  of  both.     For  if  the 

landlord  was  not  negligent,  he  cannot,  it  seems,  be  liable  for 

the  negligence  of  a  tenant  over  whom  he    has  no   control.^ 

There  certainly  may  be  negligences    touching  the   premises 

for  which  the  landlord,  not  being  in  control  or  having  notice, 

cannot  be  responsible,  as  for  leaving  open  a  scuttle  in  the 

sidewalk  for  half  an  hour. 

779.  On  the  other  hand  the  landlord  himself  may  have  been 
guilty  of  negligence,  and  yet  not  be  liable  to  a  person  who 
suffers  damage  thereby;  for  the  landlord  may  owe  no  duty 
towards  such  person  to  keep  the  premises  in  proper  condition. 
That  would  be  the  case  where  the  person  hurt  had  entered 
the  premises  on  the  invitation  of,  or  on  business  with,  the 
tenant  alone.  For  example:  The  defendant  lets  an  unfur- 
nished house  the  staircase  of  which  is  then  in  a  dangerous 
condition;  the  defendant  being  under  no  duty  to  put  it  in 
reiDair.  The  plaintiff  comes  upon  the  premises  by  request  of 
the  tenant,  to  move  some  furniture.  While  doing  this  he  is 
hurt  by  reason  of  the  defective  state  of  the  staircase.  The 
defendant  is  not  liable.^ 

1  Infra,  §  16. 

2  Query  of  tenancy  at  will  ?  The  landlord  may  put  an  end  to  the 
lease,  but  otherwise  he  has  no  control  over  the  premises.  While  the 
tenancy  continues  the  landlord  has  no  more  control  or  power  of  control 
than  he  would  have  if  the  tenancy  were  for  a  term  of  years.  It  should 
seem  therefore  that  the  text  covers  such  cases. 

8  Lane  v.  Cox,  1897,  1  Q.  B.  415. 

25 


386  LAW   OF   TORTS.  [Part  III. 

780.  It  may  be  however  that  the  damage  was  caused  by  a 
condition  of  the  premises  for  which  the  hmdlord  would  be 
liable  to  the  plaintiff  regardless  of  the  question  whether  the 
premises  were  let  and  out  of  his  possession.  Thus  the  dam- 
age may  have  been  caused  by  the  defective  condition  of  the 
eaves  of  a  house  overhanging  the  street,  whereby  pipes  fall 
from  the  same  and  strike  one  passing  along  in  the  highway. 
The  landlord  would  be  liable  in  such  a  case,  if  he  had  notice 
that  the  premises  were  in  that  state ;  for  the  owner  of  prem- 
ises owes  to  the  public,  and  to  every  member  thereof,  the  duty 
to  have  his  premises  in  safe  condition  for  those  who  are  pass- 
ing in  the  highway,  so  far  as  by  diligence  he  can.  The  high- 
way must  be  safe  and  the  landlord  must  not  negligently  make 
it  unsafe,  or  after  notice  permit  it  to  remain  unsafe  even  in 
the  hands  of  his  tenant.  He  does  not  get  rid  of  this  duty  by 
leasing  his  premises  and  thus  putting  them  out  of  his  hands. 
He  would  no  doubt  have  sufficient  power  of  control  to  enter 
and  repair,  unless  the  lease  forbade;  but  even  if  the  lease 
took  away  his  right  of  repair,  he  would  be  liable,  because  he 
could  not  get  rid  of  his  duty  to  the  plaintiff  by  contract  with 
the  tenant.^     Sale  alone  would  put  an  end  to  his  duty. 

781.  It  is  not  clear,  where  the  premises  fell  into  disorder 
by  the  negligence  of  the  tenant  alone,  whether  the  landlord 
would  be  liable  for  damage  done  before  having  notice  of  the 
state  of  things.  Probably  he  would  not  be,  because  the  duty 
of  control,  which  includes  the  duty  of  repair,  appears  to  be  a 
duty  not  to  be  guilty  of  negligence  in  the  matter;  the  duty 
of  control  is  not  neglected  if  there  be  no  reason  to  suppose 
that  anything  is  wrong. 

782.  It  will  be  seen  from  what  has  already  been  said  that 
the  common  way  of  putting  the  rule  of  liability  in  cases  of 
landlord  and  tenant,  to  wit,  that  the  landlord  is  liable  if  the 
defective  condition  of  the  premises  was  due  to  his  negligence, 

^  The  duty  to  repair  rests,  in  the  absence  of  stipulation  otherwise,  on 
the  tenant;  and  the  tenant  being  accordingly  bound  to  repair  is  liable  for 
the  neglect,  whether  the  landlord  is  also  liable  or  not.  See  Lowell  v. 
Spauldirg,  4  Cush.  277;  Fisher  v.  Thirkell,  21  Mich.  1;  L.  C.  Torts,  627. 


Chap.  XYITI.  §  13  ]  NEGLIGENCE.  387 

though  true  in  certain  cases,  ^  is  too  broad.  Still,  while  it  is 
true  that  the  tenant  is  or  may  be  ^  liable  if  he  was  negligent 
in  the  matter,  the  landlord  also  may  be  liable ;  enough  that 
the  landlord  as  well  as  the  tenant  owed  a  duty  to  the  person 
suffering  damage.  And  in  cases  in  which  the  landlord  has 
assumed,  what  apart  from  contract  would  rest  upon  the  ten- 
ant, the  duty  of  ordinary  repair,  the  landlord  will,  it  seems, 
be  liable  for  the  negligence  of  the  tenant  alone  touching 
repairs  (though  not  for  the  tenant's  negligence  in  other 
respects) ;  ^  but  in  principle  not,  even  in  such  a  case,  to 
customers  or  guests  of  the  tenant,  for  to  them  he  owes  no 
duty  of  the  kind  under  consideration. 

783.  The  question  of  liability  will  be  complicated  where 
there  is  a  mixed  tenancy  between  the  landlord  and  tenant,  or 
perhaps  where  the  landlord  has  let  a  building  in  Mixed  ten- 
parts  to  several  tenants  with  common  entrances,  ^^^y- 
hallways,  and  the  like.*  In  the  first  of  the  two  cases  it 
seems  that  where  the  plaintiff  was  not  hurt  by  reason  of  any 
duty  which  the  landlord  owed  to  the  public  (as  where  the 
premises  were  unsafe  for  persons  passing  in  the  highway),  the 
general  test  of  the  landlord's  liability  is  whether  the  plaintiff 
entered  on  business  with  him  or  by  his  invitation.  If  the 
plaintiff  entered  on  business  with,  or  by  invitation  of,  the  ten- 
ant, the  tenant  alone  is  liable,  if  either  is."  As  for  the  case 
of  a  building  let  in  parts  to  several  persons,  with  right  of 
common  entrances  and  hallways,  it  may  be  that  the  landlord 
should  be  held  liable  for  the  defective  condition  of  such  ways 

1  See  Fisher  v.  Thirkell,  21  Mich.  1  ;  s.  c.  L.  C.  Torts,  627;  Miller  v. 
Hancock,  1893,  2  Q.  B.  177,  C.  A.;  Nelson  v.  Liverpool  Brewery  Co., 
2  C.  P.  D.  311 ;  Todd  v.  Flight,  9  C.  B.  n.  s.  377. 

2  The  tenant  would  not  be  liable  if  he  owed  no  duty  to  the  plaintiff,  as 
where  the  latter  entered  only  as  a  customer  or  guest  of  the  landlord. 

8  See  Fisher  i-.  Thirkell,  supra;  Lowell  v.  Spaulding,  4  Cush.  277. 

*  See  Lane  v.  Cox,  1897,  1  Q.  B.  41.5,  C.  A.,  supra;  Gordon  v.  Cum- 
mings,  152  Mass.  513 ;  IVIarwedel  v.  Cook,  154  INIass.  235.  Or  where  a 
railway  company  has  let  its  property  and  yet  kept  control  of  the  running 
of  the  cars.     Chesapeake  R.  Co.  v.  Howard,  178  U.  S.  153,  infra, 

*  See  Lane  i;.  Cox,  supra  ;  Roche  v.  Sawyer,  176  Mass.  71. 


388  LAW   OF   TORTS.  [Part  TIL 

to  customers  of  the  tenants,  wliere  the  duty  of  keeping  the 
ways  in  order  among  several  tenants  is  so  cut  up  as  to  leave 
the  duty  a  matter  of  doubt  towards  the  plaintiff;  for  the  sake 
of  fixing  liability  somewhere,  it  may  be  that  the  landlord, 
though  not  in  control  or  personally  negligent,  should  be 
liable/  But  that  may  be  doubted.  In  principle  the  land- 
lord should  not  be  liable  to  his  tenants'  customers  even  for 
active  negligence  on  his  part,  unless  he  remains  in  direct 
control,  as  in  the  case  of  a  railroad  company  letting  its  prop- 
erty and  yet  running  the  trains.^ 

784.  It  has  been  suggested  that  the  ground  of  the  landlord's 
liability  for  his  tenant's  negligence,  where  he  is  liable  for  it, 
is  that  of  preventing  circuity  of  action.  But  that  may  be 
doubted,^  as  in  the  matter  before  considered,*  except  in  regard 
to  cases  in  which  the  landlord  has  assumed  the  duty  of  the 
tenant  to  make  ordinary  repairs.  The  true  ground  in  general 
appears  to  be  the  duty  of  the  landlord  to  the  plaintiff;  the 
question  of  liability  accordingly  being  direct. 

§  14.    Of  Contributory  Fault. 

785.  Generally  speaking,  it  is  a  defence  to  an  action  of  tort 
that  negligence  or  other  wrongdoing  on  the  part  of  the 
Meaning  of  plaintiff  '  contributed  '  to  produce  the  damage  of 
the  term:        which  he  complains.^     The  reason  of  this  lies  in 

proximate  ,  .  ,  . 

and  remote       the    Consideration    that   a  man  is    not  liable   for 

damage  which  he  has  not  caused;  ^  or,  conversely, 


causes. 


1  See  Gordon  v.  Cummings,  152  Mass.  515 ;  Marwedel  v.  Cook,  154 
Mass.  235,  236;  Plummer  v.  Dill,  156  Mass.  426,  428. 

2  Chesapeake  R.  Co.  v.  Howard,  178  U.  S.  l.o3;  Texarkana  R.  Co.  v. 
Anderson,  67  Ark.  123.  But  qu.  of  chattels  leased  for  use  by  the  tenant's 
customers  ?  Compare  Langridge  v.  Levy,  2  M.  &  W.  519  ;  s.  C  4  M.  &  W. 
338;  ante,  p.  384;  post,  398-400. 

8  Lowell  V.  Spaulding,  4  Cush.  277. 

*  Ante,  p.  383. 

^  Murphy  v.  Deane,  101  Mass.  455.  In  some  States  the  plaintiff  in  a 
suit  for  negligence  has  to  prove  that  he  was  not  guilty  of  contributory 
fault.  Id.;  McLane  v.  Perkins,  92  Maine,  39;  Getman  v.  Delaware  R. 
Co.,  162  N.  Y.  21. 

•  The  word  '  cause  '  when  here  used  alone  =:  *  proximate  cause.' 


Chap.  XVIII.  §  14.]  NEGLIGENCE.  389 

the  law  holds  men  liable  for  those  wrongs  alone  which  they 
have  caused.  If  the  defendant  did  not,  either  personally, 
or  by  another  under  his  express  or  implied  authority,  cause 
the  damage,  he  is  not  liable ;  and  it  is  part  of  the  plaintiff's 
case  to  show  that  the  defendant  wholly  caused  the  damage  of 
which  he  complains.^  Now  if  there  intervened  between  the 
act  or  omission  of  the  defendant  and  the  damage  sustained  an 
independent  act  or  perhaps  omission,  whether  of  negligence  or 
other  wrongdoing,  which,  in  the  sense  of  a  cause,  contributed 
to  effect  the  damage,  it  follows  that  the  misfortune  might 
not  have  happened  but  for  that  act  or  omission ;  and  hence 
the  plaintiff  cannot  prove  that  the  defendant  wholly  caused 
the  harm. 

786.  But  an  act  or  an  omission  may  be  said  to  '  contribute  ' 
to  a  result  as  well  when  it  does  not  stand  in  the  relation  of  a 
cause  to  that  result  as  when  it  does ;  and  the  term  '  contrib- 
ute '  or  '  contributory  '  is  in  fact  sometimes  used  of  situations 
in  which  there  is  no  connection  of  cause  and  effect  recognized 
by  law,  that  is,  in  cases  in  which  the  contributory  act  or 
omission  is  not  '  causa  proxima '  as  it  must  be  to  have  any 
legal  consequences,  but  is  only  '  causa  remota. '  '  Causa 
proxima,  non  remota,  spectatur. '  When  the  term  in  ques- 
tion is  used  in  this  broader  sense,  it  will  then  be  necessary  to 
understand  tliat  only  such  contributory  act  or  omission  as 
may  be  considered  a  proximate  cause  ^  of  the  misfortune  com- 
plained of  can  bar  the  action.  But  the  stricter  use  of  the  term 
as  causa  proxima  is  the  more  common  and  better  use.  In 
some  cases,  the  situation  may  be  such  that  the  plaintiff  can- 
not recover  even  when  the  defendant's  fault  was  adequate  to 
produce  the  injury  without  the  plaintiff's  negligence,  as  in 
certain  cases  of  collision  where  the  fault  on  each  side  is  con- 
temporaneous.^     But   in   no   case   can  the  plaintiff  recover 

1  IVIurphy  v.  Deane,  supra.  The  liability  of  a  master  for  the  (in  fact) 
unauthorized  torts  of  his  servant,  or  of  a  principal  for  the  like  torts  of 
his  agent,  stands  on  special  grounds. 

2  Not  necessarily  as  the  only  one. 

'*  Murphy  v.  Deane,  101  Mass.  455,  464,  465 ;  Brember  v.  Jones,  67 
N.  H.  374. 


300  LAW  OF  TORTS.  [Part  III. 

where  the  evidence  falls  short  of  showing  that  the  defendant's 
act  or  omission  proximately  caused  the  injury. 

787.  On  the  other  hand,  conditions  (remote  causes)  must 
not  be  confounded  with  proximate  causes.^  The  mere  fact 
Conditions  that  a  person  or  his  property  is  in  an  improper 
distinguished,  position,  when,  if  he  had  not  been  there,  no  dam- 
age would  have  been  done  to  him,  does  not  preclude  him  from 
recovering. 2  Such  circumstance  is  only  a  condition  to  the 
happening  of  the  damage,  not  a  cause  of  it.^  The  misfortune 
may  have  been  a  very  unnatural  and  extraordinary  result  of 
the  situation,  not  to  be  foreseen  in  the  light  of  ordinary 
events ;  and,  when  that  is  the  case,  the  fact  that  the  person 
or  property  was  in  the  particular  situation  is  not  in  contem- 
plation of  law  a  cause  of  the  damage.  A  man  may  in  the 
daytime  fall  asleep  in  the  country  highway,  or  leave  his  goods 
there,  and  recover  for  injury  by  another's  driving  carelessly 
over  him  or  them;  since,  though  the  position  occupied  is  a 
condition  to  the  damage,  the  damage  is  not  the  natural  re- 
sult of  the  act.^ 

788.  The  law  therefore  considers  whether  the  conduct  of 
the  plaintiff  had  a  natural  tendency,  such  as  exists  between 

cause  and  effect,  to  place  the  party  or  his  property 
tendency  of      i^  the  direct  way  of  the  danger  which  resulted  in 

conduct  the  the  disaster.  If  it  had  not,  it  did  not,  in  the 
test.  „ 

sense  of  a  cause,  contribute  to  the  injury.     Such 

is  the  legal  theory  of  contributory  negligence  or  other  fault 
as  a  bar  to  an  action  for  tort.  For  example:  The  defendant 
sails  a  vessel  in  such  a  careless  manner  as  to  cause  a  collision 
with  another  vessel  on  which  the  plaintiff  is  a  passenger;  the 
plaintiff  at  the  time  standing  in  an  improper  place  for  passen- 
gers, to  wit,  near  the  anchor,  which  is  struck  by  the  defend- 
ant's boat  and  caused  to  fall  upon  the  plaintiff's  leg  breaking 

1  Newcomb  v.  Boston  Protective  Dept.,  146  Mass.  596;  Cases,  557. 

2  Id.  8  Id. 

*  See  the  remarks  of  Parke,  B.,  in  Davies  v.  Maun,  10  M.  &  W.  546, 
549. 


Chap.  XVIII.  §  14.]  NEGLIGEN'CE.  391 

it.  The  defendant  is  liable;  the  plaintiff's  standing  in  the 
improper  position  not  contributing,  in  the  stricter  sense,  to 
the  injiny,  since  it  would  not  be  the  natural  and  probable 
result  that  one  standing  there  would  be  hurt  by  a  collision.^ 
Again:  The  defendant  driving  carelessly  along  the  highway 
runs  against  and  injures  the  plaintiff's  donkey,  straying  im- 
properly therein,  and  fettered  in  his  forefeet  so  as  not  to  be 
able  to  move  with  freedom.  This  is  a  breach  of  duty  to  the 
plaintiff ;  the  latter's  act  not  contributing,  in  the  same  sense, 
to  the  damage.'"^  Again:  The  plaintiff's  vehicle,  improperly 
placed  in  the  highway,  is  run  into  negligently  by  the  defend- 
ant's team.  The  plaintiff  is  not  disentitled  to  recover  because 
of  the  position  of  his  vehicle.^ 

789.  In  accordance  with  the  same  principle,  a  traveller  may 
be  riding  a  horse  or  in  a  carriage  which  he  had  no  right  to 
take  or  use,  or  on  a  turnpike  without  payment  of  toll,  or  with 
a  speed  forbidden  by  law,  or  upon  the  wrong  side  of  the 
road ;  *  or  his  horses  may  be  standing  in  the  street  of  a  town, 
without  his  attending  by  them  and  keeping  them  under  his 
command  as  the  law  requires ;  in  none  of  these  cases  is  his 
right  of  action  for  any  injury  he  may  sustain  by  the  negligent 
conduct  of  another  affected  by  these  circumstances.  He  is 
none  the  less  entitled  to  recover,  unless  it  appear  that  his 
own  negligence  or  other  wrongdoing  contributed  as  a  proxi- 
mate cause  to  the  damage.^ 

790.  This  is  equally  true  though  the  plaintiff  is  a  positive 
trespasser,  as  the  examples  elsewhere  given  of  men  injured 
by  savage  dogs  or  spring-guns  while  trespassing  by  day  upon 
the  defendant's  premises  clearly  show ;  ^  for  it  is  not  the  nat- 

1  Greenland  v.  Chaplin,  5  Ex.  243.  Or,  as  Pollock,  C.  B.,  suggested, 
the  plaintiff  covild  not  have  foreseen  the  consequences  of  standing  where 
he  did  ;  that  is,  such  consequences  were  unusual,  not  the  common  effect 
of  such  an  act. 

2  Davies  v.  Mann,  in  M.  &  W.  546. 

8  Newcomb  v.  Boston  Protective  Dept.,  146  Mass.  596. 
4  Brember  v.  Jones,  67  N.  H.  374. 
6  Norris  v.  Litchfield,  35  N.  H.  271,  Bill,  J. 

«  Bird  V.  Holbrook,  4  Bing.  628;  Loomis  v.  Terry,  17  Wend.  496; 
ante,  p.  355,  note. 


392  LAW   OF  TORTS.  [Part  III. 

urul  or  usual  effect  of  trespassing  in  the  daytime  (not  feloni- 
ously) tliat  the  party  should  be  bitten  by  a  savage  dog  not 
known  to  be  there,  or  maimed  by  the  discharge  of  a  hidden 
gun.  Wrongful  acts  or  omissions  cannot  he  set  off  against 
each  other,  so  as  to  make  the  one  excuse  the  other,  unless 
they  stand  respectively  in  the  situation  of  true  causes  to  the 
damage. 

791.  In  this  connection  attention  may  be  called  to  certain 
cases  of  injury  sustained  on  Sunday  through  the  defendant's 
Violating  Sun-  negligence  by  a  plaintiff  engaged  in  acts  neither 
day  laws.  of  necessity  nor  of  charity ;  in  other  words,  in  acts 
rendered  unlawful  by  statute.  By  most  of  the  courts  it  is 
held  that  the  plaintiff'  is  not  thereby  precluded  from  recover- 
ing for  damage  sustained,  in  the  absence  of  explicit  language 
to  that  effect  in  the  statute ;  and  this  on  the  ground  that  the 
mere  doing  of  the  illegal  act  is  not,  or  may  not  be,  contrib- 
utory in  the  proper  sense  to  the  damage  sustained.^  For 
example:  The  defendant,  a  town,  bound  to  keep  a  certain 
bridge  in  repair,  negligently  allows  it  to  get  out  of  order; 
and  the  plaintiff,  without  notice  of  the  condition  of  the 
bridge,  in  attempting  to  drive  cattle  over  it  to  market  on 
Sunday  breaks  through  the  bridge,  several  of  his  cattle  being 
killed  and  others  hurt  thereby.  The  defendant  is  guilty  of 
a  breach  of  duty  to  the  plaintiff,  and  liable  to  him  for  the 
damage  sustained;  the  violation  of  the  Sunda}^  law  not  prop- 
erly contributing  to  the  result,  since  it  is  not  the  natural  or 
usual  result  of  travelling  on  Sunday  that  damage  should 
follow.  2 

792.  This  is  clearly  correct  in  principle,  in  the  absence  of 
language  of  the  statute  plainly  intended  to  prohibit  all  actions 
for  damage  sustained  on  Sunday,  except  such  as  is  caused 
without  any  violation  of  law  by  the  injured  party;  but  the 
contrary    rule    prevails,    or   has   prevailed,    in   some    of   the 

1  Sutton  V.  Wauwatosa,  29  Wis.  21 ;  Cases,  546 ;  Mohney  v.  Cook,  26 
Penn.  St.  342 ;  Corey  v.  Bath,  35  N.  H.  530 ;  Carrol  v.  Staten  Island  R. 
Co.,  58  N".  Y.  126. 

2  Sutton  V.  "Wauwatosa,  supra. 


Chap.  XVIII.  §  14.]  NEGLIGENCE.  393 

States,^  This  contrary  rule  however  is  considerably  nar- 
rowed by  the  courts  which  adhere  to  it.  It  is  considered 
not  to  ai)ply  to  cases  in  whicli  the  defendant  has  misused 
property  of  the  plaintiff  hired  on  Sunday. 2  So  too  it  is  held 
that  one  who  is  walking  on  the  highway  on  Sunday,  simply 
for  exercise  or  fresh  air,  may  recover  against  a  town  for 
negligence  whereby  he  has  sustained  damage. ^ 

793.   It  will  however  be  difficult  sometimes  to  determine 
whether  the  fact  or  facts  in  question  amount  to  a  legal  cause 
or  only  to  a  condition  of  the  misfortune ;  and  the 
courts  may,  for  that  very  reason,  be  disposed  to  fp^ia/^JSes : 
cut   the   matter   short   by   laying  down   a   posi-  'look  and 
five  rule  of  law  covering  the  question.*    Thus  in 
the  Federal  courts,  and  in  some  States,  contrary  to  the  rule 
in  others,    the  law  requires  one  to  '  look  and  listen  '  before 
crossing  a  steam  or  an  electric  railway  or  a  highway ;  failure 
to  do  so  is  accordingly,  by  prima  facie  presumption,  contrib- 
utory negligence  barring  an  action. ^     But  such  cases  are  not 

^  Bosworth  V.  Swansea,  10  Met.  363;  Jones  v.  Andover,  10  Allen,  18; 
Connolly  v.  Boston,  117  Mass.  61.  See  however  Newcomb  v.  Boston 
Protective  Dept.,  146  Mass.  596,  which  in  principle  is  opposed  to  these 
cases.     The  law  of  the  State  has  been  changed  by  statute  recently. 

2  Hall  V.  Corcoran,  107  Mass.  251,  overruling  Gregg  r.Wyinan,  4Cush. 
322,  on  authority  of  which  Wheldon  v.  Chappel,  8  R.  I.  230,  was  decided. 
See  also  AVoodman  v.  Hubbard,  25  N.  H.  67  ;  Morton  v.  Gloster,  40  Maine, 
520. 

8  Hamilton  v.  Boston,  14  Allen,  475.  See  further  Cox  v.  Cook,  id. 
165 ;  Feital  v.  Middlesex  R.  Co.,  109  Mass.  398. 

^  See  ante,  pp.  329,  330,  and  notes. 

6  Raih-oad  Co.  v.  Houston,  95  U.  S.  697 ;  Northern  Pacific  R.  Co.  v. 
Freeman,  174  U.  S.  379;  Baker  v.  Kansas  City  R.  Co.,  147  Mp.  140;  Con- 
nolly V.  New  York  R.  Co.,  158  Mass.  8 ;  Cole  v.  New  York  R.  Co.,  174  Mass. 
537";  Robbins  v.  Springfield  Street  Ry.  Co.,  165  Mass.  30  (drawing  a  dis- 
tinction between  steam  and  electric  or  horse  railways) ;  Creamer  v.  West 
End  Street  Ry.,  156  Mass.  320  (the  same  distinction)  ;  Cawley  v.  La 
Crosse  Ry.  Co.,  101  Wis.  145  (applying  the  rule  to  electric  railways), 
and  cases  cited;  maintaining  the  '  look  and  listen  '  rule.  Contra,  Judson 
V.  Central  Vermont  R.  Co.,  158  N.  Y.  597 ;  Lawler  v.  Hartford  Street  Ry. 
Co.,  72  Conn.  74 ;  Atlantic  City  R.  Co.  v.  Goodin,  45  L.  R.  A.  671  (N.  J.) 
and  cases  cited.  Compare  Herbert  r.  Southern  Pacific  R.  Co.,  121 
Calif.  227  ;  Niosi  v.  Empire  Laundry,  117  Calif.  257  (crossing  highway) ; 


394  LAW   or   TORTS.  [Part  III. 

to  be  taken  as  invalidating  the  general  theory  of  contributory 
negligence. 

794.  It  is  laid  down  in  certain  cases  that,  if  the  plaintiff 

could  have  avoided  the  disaster  by  the  exercise  of  '  due  care, ' 

„  ,     , ,  he  is  not  entitled  to  complain  of  the  negligence  of 

Rule  of  due  ,     .  .  o    o 

care  by  plain-  the  defendant.  ^  This  is  not  intended  however  to 
*^^^'  suggest  a  general  test  of  liability.     In  the  case 

of  the  fettered  donkey  above  stated,  the  plaintiff  might  have 
avoided  the  effect  of  the  defendant's  negligence  by  keeping 
his  animal  at  home,  but  he  was  still  held  entitled  to  recover. 
The  meaning  of  the  rule  in  question  is  that  in  the  moment 
of  actual  peril  the  plaintiff  must  not  be  guilty  of  failing  to 
exercise  such  reasonable  care  under  the  circumstances  as 
he  can,  to  protect  himself  against  damage.  Being  at  hand 
at  the  moment,  the  plaintiff"  might  be  able  to  prevent  harm, 
and  must  govern  himself  accordingly. 

795.  One  who  however  in  a  sudden  emergency  loses  pres- 
ence of  mind  through  the  misconduct  of  the  defendant,  and 
Losing  pres-  while  in  such  loss,  and  owing  to  it,  falls  into 
ence  of  mind,  danger  and  is  hurt,  is  not  thereby  guilty  of  want 
of  due  care  or  of  contributory  negligence.  The  defendant's 
unlawful  act  has  caused  the  loss  of  presence  of  mind,  and 
what  happens  afterwards  is  but  the  natural  effect  of  the  act.^ 

Chicago  Ry.  Co.  v.  Lowell,  151  U.  S.  209.  And  see  Chicago  R.  Co.  v. 
Pearson,  184  111.  380  ;  Harvard  Law  Rev.,  Nov,  1899,  p.  226 ;  ante,  p.  329, 
note.  The  cases  affirming  the  rule  require  one  to  look  and  listen,  or  to 
show  a  sufficient  reason  for  not  doing  so  in  case  of  omission.  Baker  v. 
Kansas  City  R.  Co.,  supra.  The  cases  contra  leave  it  to  the  jury  to  de- 
termine, on  the  facts,  without  any  presumption,  whether  the  plaintiff  was 
guilty  of  contributory  negligence  or  not. 

1  Haley  V.  Case,  142  Mass.  316,  321;  Ferren  v.  Old  Colony  R.  Co., 
143  Mass.  197;  Ciriack  v.  Merchants' Woolen  Co.,  151  Mass.  152;  s.  c. 
146  Mass.  182;  Russell  v.  Tillotson,  140  ]\lass.  201;  Butterfield  v.  For- 
rester, 11  East,  60 ;  Bridge  v.  (irand  June.  Ry.  Co.,  3  M.  &  W.  244  ;  Davies 
V.  Manji,  10  M.  &  W.  546;  Tuff  v.  Warman,  5  C.  B.  n.  s.  573,  Exch.  Ch.  ; 
Caswell  V.  Worth,  5  El.  &  B.  849. 

^  Coulter  V.  American  J^xpress  Co.,  56  N.  Y.  585  ;  Getman  ;;.  Delaware 
R.  Co.,  162  N.  Y.  21.  See  also  Johnson  v.  West  Chester  Ry,  Co.,  70 
Penn.  St.  357 ;  Galena  R.  Co.  v.  Yarwood,  17  III.  509.  Compare  The 
By  well  Castle,  4  P.  Div.  219.  But  see  Meyer  v.  Boepple  Co.,  83  N.  W. 
Rep.  809  (Iowa). 


Chap.  XVIII.  §  14.]  NEGLIGENCE.  395 

For  example :  The  defendant  is  carelessly  driving  an  express 
wagon  along  the  sidewalk  of  the  street  of  a  city,  at  a  rapid 
rate,  which  suddenly  comes  up  behind  the  plaintiff,  when  she 
instinctively  springs  aside  to  escape  danger,  and  in  so  doing 
strikes  her  head  against  the  wall  of  a  building,  and  is  hurt. 
The  defendant  is  liable.^  Again:  The  defendant,  a  railway 
company,  negligently  leaves  the  gates  of  a  level-crossing  ojDen, 
and  the  plaintiff  is  thereby  misled  into  crossing,  supposing  it 
to  be  safe  to  cross,  but  not  using  his  faculties  as  well  as  he 
might  have  done  under  other  circumstances ;  and  he  is  hurt 
by  a  passing  train.     The  defendant  is  liable. ^ 

796.  On  the  other  hand,  it  is  laid  down  in  certain  cases 
that  the  plaintiff  may  be  entitled  to  recover,  if  the  defendant 
might,  by  the  exercise  of  '  due  care  '  on  his  part.  Due  care  by 
have  avoided  the  consequences  of  the  negligence  defendant, 
of  the  plaintiff. 3  This  too  cannot  be  intended  to  suggest  a 
general  test  of  liability.  In  the  case  of  one  who  in  the  want 
of  due  care  has  fallen  through  a  trap-door  left  open  by  the 
defendant  negligently,  the  defendant  clearly  might  have 
avoided  the  consequence  of  the  plaintiff's  negligence  by  hav- 
ing closed  the  door;  and  3^et  he  is  not  liable.  The  meaning 
of  the  rule  is  that  where  the  plaintiff  was  not  at  hand,  so  as 
to  prevent  the  damage,  the  defendant  will  be  liable  if  by  due 
care  he  might  have  prevented  the  harm  and  did  not  exercise 
it.  The  question  would  be  proper  in  a  case  like  that  of  the 
fettered  donkey.*     Again:  The  defendant  is  pilot  of  a  steamer 

1  Coulter  V.  American  Express  Co.,  supra. 

2  Northeastern  Ry.  Co.  v.  Wanless,  L.  R.  7  H.  L.  12  ;  Sweeny  v.  Old 
Colony  R.  Co.,  10  Allen,  368.  See  Davey  v.  Southwestern  Ry.  Co.,  12 
Q.  B.  Div.  70;  Dublin  &  Wicklow  Ry.  Co.  v.  Slattery,  3  App.  Cas.  1155. 

3  Tuff  V.  Warman,  5  C.  B.  n.  s.  573,  Exch.  Ch.,  leading  case. 

*  See  also  Radley  v.  London,  &  Northwestern  Ry.  Co.,  1  App.  Cas.  754, 
reversing  L.  R.  10  Ex.  100,  and  restoring  L.  R.  9  Ex.  71,  a  very  instructive 
case.  See  especially  p.  760,  Lord  Penzance,  quoted  in  Pollock,  Torts,  p.  378. 
It  is  there  stated  that  if  the  defendant  '  might  at  this  stage  of  the  matter 
[the  actual  emergency]  by  ordinary  care  have  avoided  all  accident,  any 
previous  negligence  of  the  plaintiffs  would  not  preclude  them  from 
recovering,' 


396  LAW  OF  TORTS.  [Part  III. 

on  the  Thames,  which  runs  down  the  plaintiff's  barge.  There 
is  no  look-out  on  the  barge,  but  there  is  evidence  that  the 
steamer  might  easily  have  cleared  her.  It  is  proper  to  leave 
it  to  the  jury  to  say  whether  the  want  of  a  look-out  is  negli- 
gence in  the  plaintiff,  and  if  so,  whether  it  directly  contrib- 
uted to  the  damage  done ;  the  negligence  of  the  plaintiff,  if 
found,  not  barring  his  action  if  the  defendant  might  have 
avoided  the  consequences  of  it  by  the  exercise  of  due  care.^ 
If  the  rule  referred  to  were  applied  to  cases  of  simultane- 
ous negligence,  at  the  moment  of  disaster  either  party  to  a 
collision  caused  by  their  joint  carelessness  might  be  entitled 
to  recover  against  the  other;  while,  in  truth,  neither  can 
recover.  2 

§  15.   Of  Comparative  Negligence. 

797.  In  some  States  a  doctrine  of  '  comparative  negligence  * 
takes  the  place  of  the  doctrine  of  contributory  negligence. 
Doctrine  ^^   ^^^  been   Stated  from   the  bench  as  follows: 

stated.  Where  there  has  been  negligence  in  both  plaintiff 

and  defendant,  still  the  plaintiff  may  recover  if  his  negligence 
was  slight,  and  that  of  the  defendant  gross  in  comparison. 
And  this  rule  has  been  extended  to  cases  in  which  the  neg- 
ligence of  the  plaintiff  has  contributed,  in  some  degree,  to 
the  injury  complained  of.^  The  defendant's  negligence  how- 
ever must  stand  as  a  cause  towards  the  injury.*  Accordingly 
it  was  laid  down,  of  death  caused  at  a  railroad  crossing,  that 
if  the  deceased  was  guilty  of  negligence  in  not  observing  the 
precautions  which  an  ordinarily  prudent  man  would  observe 
before  attempting  to  cross  the  track,  then  the  real  question 
was,  whether  his  negligence  in  that  respect  was  slight  in 
comparison  with  that  of  the  defendants,  if  they  were  guilty 
of  neGflisrence  at  all.^ 

1  Tuff  V.  Warman,  5  C.  B.  x.  s.  573. 

2  i\Iurphy  V.  Deane,  101  j\Iass.  455,  464,  465.  Some  of  the  language 
in  Tuii  v.  Warman,  supra,  is  here  criticised,  but  not  so  as  to  affect  the 
example  of  the  text. 

8  Chicago  &  Q.  R.  Co.  v.  Van  Patten,  64  111.  510,  517,  Scott,  J. 
*  Id.  at  p.  514.  5  Id.  p.  517 


Chap.  XVIII.  §  16.]  NEGLIGENCE.  397 

§  16.   Oi^  Intervening  Forces. 

798.  Thus  far  of  the  contributory  acts  or  omissions  of  the 
plaintiff.  But  it  may  be  that  between  the  wrongful  act  of 
the  defendant  and  the  damage  sustained  by  the  Unforeseen 
plaintiff  there  intervened  an  act  or  agency  of  a  forces, 
third  person,  in  no  way  probable  and  not  in  fact  anticipated,^ 
which  directly  produced  the  damage.  If  this  be  the  case, 
and  the  misfortune  would  not  have  followed  without  it,  the 
defendant,  similarly  it  seems,  will  not  be  liable.  For  ex- 
ample :  The  defendant  wrongfully  sells  gunpowder  to  the 
plaintiff,  a  boy  eight  yeare  old,  who  takes  it  home  and  puts 
it  into  a  cupboard,  where  it  lies  for  more  than  a  week,  with 
the  knowledge  of  the  child's  parents.  The  boy's  mother 
now  gives  some  of  the  powder  to  him,  which  he  fires  off  with 
her  knowledge.  This  is  done  a  second  time,  when  the  child 
is  injured  by  the  explosion.     The  defendant  is  not  liable.^ 

799.  Indeed  the  defendant  can  never  be  liable  when  any- 
thinsr  out  of  the  natural  and  usual  course  of  events  unex- 
pectedly  arises  and  operates  in  such  a  way  as  to  make  the 
defendant's  negligence,  otherwise  harmless,  productive  of 
injury.  A  whirlwind  does  not  usually  arise  on  a  quiet  day, 
and  hence,  though  a  person  should  build  a  small  fire  in  a 
country  road,  contrary  to  law,  on  a  mild  day,  he  would  not 
(probably)  be  liable  for  the  consequences  of  a  whirlwind 
suddenly  springing  up  and  scattering  the  fire,  to  the  damage 
of  another.^ 

800.  The  case  will  be  different  if  the  party  acted  with 
knowledge  or  notice  of  the  intervening  act,  agency,  or  force 

1  See  Clark  v.  Chambers,  3  Q.  B.  Div.  327,  as  to  damage  resulting  from 
removal  by  a  third  person  of  obstructions  unlawfully  put  in  the  highway 
by  the  defendant,  he  being  held  liable. 

2  Carter  v.  Towne,  103  Mass.  507. 

8  Compare  Insurance  Co.  v.  Tweed,  7  Wall.  44.  For  all  that  happens 
in  the  regular  course  of  things,  under  the  conditions  as  they  exist  at  the 
time  of  the  act  or  omission  in  question,  the  defendant  will  be  liable, 
though  the  particular  harm  resulting  may  have  been  altogether  improba- 
ble. See  the  important  case  of  Smith  v.  Southwestern  Ry.  Co.,  L.  R, 
5C.  P.  98,  and  6  C.  P.  14,  Exch.  Ch. ;  ante,  pp.  45,  46. 


398  LAW   OF   TORTS.  [Part  III 

of  nature.  In  this  case  he  will  be  liable.  For  example : 
The  defendant  shoots  a  pistol  against  a  polished 
surface  in  a  thoroughfare,  at  such  an  angle  as  to 
render  it  likely  that  the  ball  will  glance  and  hit  some  one. 
It  does  glance  and  hits  the  plaintiff.  The  defendant  has 
caused  the  injury  and  is  liable.^  Again :  The  defendant 
throws  a  lighted  squib  into  a  market-house  on  a  fair-day, 
which  strikes  the  booth  of  A,  who  instinctively  throws  it 
out,  when  it  strikes  the  booth  of  B.  The  latter  casts  it  out 
in  the  same  manner,  and  it  now  strikes  the  plaintiff  in  the 
face,  injuring  him.  The  defendant  is  liable.^  Again:  The 
defendant  wrongfully  sells  a  mischievous  hair- wash  to 
the  plaintiff's  husband,  knowing  that  it  is  intended  for  the 
plaintiff's  use,  and  the  plaintiff  is  injured  in  using  it.  The 
defendant  is  liable.^  Again  :  The  defendant,  a  manufacturer 
of  drugs,  negligently  labels  a  jar,  put  up  by  liim,  of  belladonna 
as  dandelion,  the  former  a  poisonous,  the  latter  a  harmless, 
drug.  The  jar  passes  from  tlie  defendant  to  a  wdiolesale 
dealer,  then  to  a  retail  dealer,  and  a  portion  of  it  then  to  the 
plaintiff,  who  buys  and  takes  it  as  dandelion.  The  defendant 
is  liable ;  the  intermediate  parties  have  only  carried  out,  in 
the  sale,  the  intention  of  the  defendant.* 

801.  In  cases  however  where  the  alleged  breach  of  duty  is 
directly  involved  in  a  breach  of  contract,  the  courts  quali- 
Breach  of  ficdly  deny  the  liability  of  the  defendant  to  any 
contract.  one  except  to  the  party  with  wdiom  he  made  the 

1  This  example  is  fairly  borne  out  by  Scott  v.  Shepherd,  3  Wils.  403- 
Contrast  Stanley  v.  Powell,  1891,  1  Q.  B.  86. 

2  Scott  i'.  Shepherd,  3  Wils.  403. 

'  George  v.  Skivington,  L.  R.  5  Ex.  1.  See  Cann  v.  Willson,  39  Ch. 
D.  39,  43;  Langridge  v.  Levy,  2  M.  &  W.  ,519;  s.  c.  4  M.  &  W.  338. 

*  Thomas  v.  ^\  inchester,  6  N.  Y.  397;  Cases  on  Torts,  567.  The 
reason  given  by  the  court  however  was  that  the  defendant,  being  en- 
gaged in  a  very  dangerous  business,  acted  at  his  own  peril.  Compare 
Farrant  v.  Barnes,  11  C.  B.  n.  s.  553,  and  Brass  v.  Maitland,  6  EI.  &  B. 
470.  See  also  Schubert  v.  Clark,  5  X.  W.  Rep.  1103;  Davidson  v. 
Nichols,  11  Allen,  514.  The  subject  is  well  discussed  in  2  Law  Quarterly 
Review,  63-65  ;  Pollock,  Torts,  439  et  seq.,  2d  ed. 


Chap.  XVIII.  §  16.]  NEGLIGENCE.  399 

contract,  —  a  point  elsewhere  noticed.^  The  authorities  are 
not  altogether  consistent,  but  there  appears  to  be  an  agree- 
ment in  regard  to  cases  of  intended  harm ;  and  the  general 
result  may  be  stated  to  be,  that  if  the  defendant  intended  or 
if  he  can  fairly  be  assumed  to  have  intended  the  acts  of  the 
intermediate  agency,  he  will  be  liable,  though  his  act  was  a 
breach  of  contract  with  another.^  The  fact  of  the  existence 
of  a  duty  to  the  person  with  whom  he  contracted  is  not  in- 
consistent with  the  existence  of  another  duty  respecting  the 
same  thing.  The  duty  to  forbear  to  do  intentionally  a  thing 
obviously  harmful  preceded  the  formation  of  the  contract ; 
and  it  is  difficult  to  see  how  that  duty,  owed  to  all  persons, 
could,  by  a  contract  made  with  one  or  several,  be  abrogated 
as  regards  others.^ 

802.  The  difficulty  is  with  cases  short  of  intention,  that  is, 
with  cases  of  negligence  only.  It  has  been  supposed  that 
if,  by  the  negligence  of  A,  a  contract  is  broken  between  B 
and  C,  the  injured  party  cannot  maintain  any  action  against 
A ;  it  being  declared  that  no  duty  is  infringed  or  exists 
except  that  created  by  the  contract.  P^or  example :  The 
defendant,  a  railway  company,  contracts  witli  the  plaintiff's 
servant  to  carrj-  him  safely  to  a  certain  place,  but  negligently 
injures  him  on  the  way.  This  is  no  breach  of  duty  to  the 
plaintiff.^ 

803.  There  is  grave  doubt  however  both  in  principle  and 
upon   authority,  whether,   apart    from    particular   cases  like 

1  Ante,  pp.  100,  197.     See  L.  C.  Torts,  617-619. 

"^  See  Langrid.sje  v.  Levy,  2  Mees.  &  W.  519  ;  s.  c.  4  Mees.  &  W.  338; 
also  Collis  V.  Seidell,  infra,"  and  (ieorge  v.  Skivington,  above  cited.  Fur- 
ther see  Heaven  v.  Pender,  11  Q.  B.  Div.  50:5,  514. 

8  See  Meux  (',  Great  Ivistern  Ry.  Co..  1895,  2  Q.  B.  387,  390;  Har- 
daker  v.  Idle  District  Council.  189G,'l  Q.  B.  335,  340. 

*  Fairmount  Ry.  Co.  v.  Stutler,  54  Penn.  St.  375;  Alton  r.  Midland 
Ry.  Co.,  19  C.  B.  n.  s.  213.  But  see  1  Wms.  Saund.  474 ;  Pollock,  Torts, 
474,  2d  ed.  It  has  been  pointed  out  that  in  Winterbottom  v.  Wright,  10 
M.  &  W.  109,  and  Longmeid  v.  Holliday,  G  Ex.  761,  generally  relied 
upon  for  the  rule  under  consideration,  there  was  no  negligence  on  the 
part  of  the  defendant ;  in  the  one  case  knowledge  of  the  defect  not  being 
alleged,  in  the  other  not  being  proved.  Pollock,  Torts,  477,  2d  ed.  See 
also  Collis  V.  Selden,  L.  R.  3  C.  P.  495. 


400  LAW   OF  TORTS.  [Part  III. 

the  one  just  referred  to,  the  rule  itself  upon  which  the 
decision  is  founded  can  be  supported.^  A  railroad  com- 
pany or  other  person  would  not  (probably)  be  liable  to  a 
master  for  an  injury  wrongfully  done  to  a  servant,  with 
out  notice  of  the  relation  of  master  and  servant.^  But  if 
there  is  a  duty  to  refrain  from  intentional  wrong,  it  is  not 
easy  to  see  why  there  cannot  be  a  duty  to  refrain  from 
negligence,  where  that  is  attended  with  notice  of  the  con- 
tract, that  is,  of  the  rights  of  the  plaintiff.  The  essen- 
tial elements  of  legal  duty  are  present  in  such  a  case  ;  the 
rights  of  the  plaintiff  being  known,  danger  is  observed: 
hence  the  duty  not  to  be  guilty  of  misconduct  touching  such 
rights.^ 

804.  As  a  question  of  authority,  there  are  cases  of  negli- 
gence entitled  to  great  weight  which  are  quite  inconsistent 
with  the  view  that  the  contract  creates  the  only  duty  that 
exists  in  such  situations.  For  example :  The  defendant,  a 
railway  company,  contracts  with  the  plaintiff's  master,  with 
whom  the  plaintiff  is  to  travel  in  the  defendant's  coaches, 
to  carry  the  plaintiff's  luggage  to  a  certain  place,  which  the 
defendant, -through  negligence,  fails  to  do.  This  is  a  breach 
of  duty  to  the  plaintiff.*  Again  :  The  defendant,  a  railway 
company,  receives  the  plaintiff  into  one  of  its  coaches,  on  a 
ticket  bought  from  another  railway  company,  with  which 
the  defendant  shares  the  profits  of  trai^c.  The  steps  of  the 
defendant's  coaches  are  too  high  for  persons  to  alight  easily 
at  the  station,  which  is  owned  by  the  other  companv ;  and 
in  alighting  with  due  care  the  plaintiff  is  hurt.     The  defend- 

1  See  Taylor  v.  Manchester  Ry.  Co.,  1895,  1  Q.  B.  134,  140;  id.  944; 
IMeux  V.  Great  Eastern  Ry.  Co.,  1895,  2  Q.  B.  387. 

*  Compare  such  cases  as  Blake  i\  Lanyon,  6  T.  R.  221. 

8  Ante,  p.  12. 

■*  Marshall  v.  York  &  Newcastle  Ry.  Co.,  11  C.  B.  655;  Austin  w. 
Great  Western  Ry.  Co.,  L.  R.  2  Q.  B.  442.  The  first  of  these  cases  was 
before  Alton  v.  Midland  Ry.  Co.,  supra,  but  the  second  was  afterwards, 
and  in  it  Marshall's  Case  w'as  cited  with  approval  by  Blackburn,  J.  Seo 
also  Foulkes  v.  Metropolitan  Ry.  Co.,  5  C.  P.  Div.  157;  Ames  t'.  Union  R. 
Co.,  117  ISIass.  541  ;  and  cases  like  Henley  v.  Lyme  Regis,  5  Bing.  91, 
and  1  Bing.  N.  C.  222,  ante,  p.  352. 


Chap.  XVIII.  §  16.]  NEGLIGENCE.  401 

ant  is   liable,  without   regard   to  the  question  whether  the 
plaintiff  had  contracted  with  the  other  company .^ 

805.  If  the  duty  resting  upon  the  defendant  be  that  of 
common  carrier  of  passengers,  or  of  goods,  the  carrier  or 
bailee  will  be  liable  for  the  damage  produced  by  a  breach 
of  his  contract,  due  to  his  own  negligence,  even  though  the 
negligence  of  a  third  person  should  contribute  to  the  damage 
sustained ;  for  the  party  was  bound  to  exercise  due  care,  and 
has  not  done  so.^  For  example  :  The  defendants,  a  railroad 
company,  contract  to  carry  the  plaintiff  to  W,  but  on  the 
way  the  train  carrying  the  plaintiff  is  brought  into  collision 
with  the  train  of  another  railroad  company,  at  a  crossing, 
through  the  negligence  of  the  managers  of  both  roads,  and 
the  plaintiff  suffers  injury  thereby.  The  defendants  have 
violated  their  duty  to  the  plaintiff,  and  are  liable  for  the 
damage  sustained  by  him.^ 

806.  The  same  doctrine  would  indeed  apply  to  cases  aris- 
ing under  any  ordinary  absolute  contract  for  the  performance 
of  a  specific  duty.  For  example  :  The  defendants  contract 
to  supply  the  plaintiffs  with  proper  gas-pipe.  Gas  escapes 
in  a  certain  room  from  a  defect  in  the  pipe  provided,  a  third 
person  negligently  enters  the  room  with  a  lighted  candle, 
and  an  explosion  takes  place.  The  defendants  are  liable 
for  the  loss  thereby  caused.* 

807.  The  rule  formerly  prevailed  in  England  that  a  pas- 
senger in  a  stage  or  railway  coach,  or  other  vehicle,  became 
by  the  act  of  obtaining  passage  '  identified '  in  Doctrine  of 
law  with  the  driver  or  manager  of  the  vehicle,  identification. 
The  effect  of  this  doctrine  was,  that  in  an  action  by  the  pas- 
senger against  a  third  person  for  negligence,  whereby  the 
former  suffered  damage  in  the  course  of  the  ride  or  journey, 
negligence   on   the  part   of  the  driver   or   manager   of   the 

1  Foulkes  V.  Metropolitan  Ry.  Co. ,  supra. 

2  Compare  Burrows  v.  March  Gas  Co.,  L.  R.  7  Ex.  96,  Exch.  Ch. 

3  Eaton  V.  Boston  &  L.  R.  Co.,  11  Allen,  500. 

*  Burrows  v.  March  Gas  Co.,  L.  R.  7  Ex.  96,  Exch.  Ch. 

26 


402  LAW   OF  TORTS.  [Part  HI. 

vehicle  in  which  the  plaintiff  has  taken  passage,  contributing 
to  the  misfortune,  was  the  negligence  of  the  plaintiff.  The 
plaintiff  therefore  was  not  entitled  to  recover,  though  he 
might  himself  have  been  free  from  fault.^  This  doctrine 
obtains  in  some  of  our  courts.^  For  example :  The  defend- 
ant, owner  of  a  stage-coach,  by  her  driver's  negligence  runs 
over  and  kills  the  plaintiff's  intestate,  while  he  is  alighting 
from  another  stage-coach ;  which  latter  coach,  by  the  negli- 
gence of  the  driver,  has  stopped  at  an  improper  place  for 
alighting.  The  latter's  negligence  is  properly  contributory, 
but  the  deceased  was  not  personally  at  fault.  The  defendant 
is  deemed  not  liable.^ 

808.  The  doctrine  has  been  much  criticised  and  often  denied 
by  other  courts ;  *  and  in  the  form  above  presented  it  was  re- 
cently overruled  in  England.^  It  was  hard  to  understand  how 
the  plaintiff  could  be  considered  identified  with  the  di'iver  of 
the  carriage  when  the  driver  was  wholly  under  the  control  of 
another.  The  driver  could  not  be  the  passenger's  servant 
in  any  accurate  sense  in  such  a  case;  the  essential  feature 
of  the  relation  of  master  and  servant  was  wanting,  to  wit, 
authority  over  the  supposed  servant.^  And,  for  the  same 
reason,  the  driver  could  not  be  considered  as  the  passenger's 
agent.  The  passenger  could  not  contract  directly  with  the 
driver  in  the  first  instance,  or  require  him  to  go  or  to  stay ; 
nor  could  he  compel  him  to  stop  by  the  way,  or  direct  him  to 

1  Thorogood  v.  Bryan,  8  C.  B.  115;  Armstrong  v.  Lancashire  Ry.  Co., 
L.  R.  10  Ex.  47  ;  Cleveland  R.  Co.  v.  Terry,  8  Ohio  St.  570 ;  Puter- 
baugh  v.  Reasor,  9  Ohio  St.  481 ;  Lockhart  v.  Lichtenthaler,  46  Penn.  St. 
151 ;  Smith  v.  Smith,  2  Pick.  621. 

8  See  cases  in  note  1,  supra.  '  Thorogood  v.  Bryan,  supra. 

4  The  Milan,  Lush.  388;  Brown  v.  McGregor,  Hay  (Scotl.),  10;  Little 
V.  Hackett,  116  U.  S.  366;  Chapman  v.  New  Haven  R.  Co.,  19  N.  Y. 
341  ;  Coleman  v.  New  York  &  N.  H.  R.  Co.,  20  N.  Y.  492 ;  Webster  v. 
Hudson  River  R.  Co.,  38  N.  Y.  260 ;  Danville  Turnp.  Co.  v.  Stewart, 
2  Met.  (Ky.)  119. 

6  Donovan  v.  Laing  Syndicate,  1893,  1  Q.  B.  629,  634,  Bowen,  L.  J.  ; 
The  Bernina,  12  P.  Div.  58,  affirmed,  nom.  Mills  v.  Armstrong,  13  App. 
Cas.  1 ;   Cases,  575. 

6  Donovan  v.  Laing  Syndicate,  1893,  1  Q.  B.  629,  634. 


Chap.  XVIIL  §  16.]  NEGLIGENCE.  403 

take  a  particular  road,  or  how  to  drive,  or  how  to  pass  a  coach 
or  an  obstruction.^  Instead  of  an  identification  between  pas- 
senger and  driver,  the  driver  himself  would  be  liable,  with 
the  other  wrongdoer,  to  the  passenger.  ^ 

809.  If  however  the  passenger  were  himself  in  fault,  as  by 
participating  in  the  negligent  conduct  of  the  driver,  or  by- 
directing  it  in  advance,  it  is  clear  that  he  could  not  recover; 
supposing  the  negligence  to  have  contributed  to  the  misfor- 
tune. In  such  a  case  as  this,  he  makes  the  driver,  pro  hac 
yice,  his  servant,  and  may  therefore  be  said  to  be  '  identified ' 
with  him. 

810.  Upon  views  not  unlike  those  in  regard  to  the  supposed 
*  identification '  of  passenger  and  carrier,  the  negligence  of 
the  parent  or  guardian  or  other  person  in  charge  Doctrine  of 
of  a  young  child,  in  allowing  the  child  to  fall  into  imputabiiity. 
danger,  has  sometimes  been  deemed  '  imputable  '  to  the  child, 
so  as  to  affect  the  child  with  contributory  negligence  in  all 
cases  in  which  the  parent  or  guardian  would  in  the  same 
situation  be  barred  of  a  right  of  action. ^  For  example:  The 
defendants,  a  railroad  company,  by  the  negligence  of  their 
servants  in  the  course  of  their  employment  and  the  contrib- 
utory negligence  of  a  person  in  charge  of  the  plaintiff,  a  child 
too  young  to  take  care  of  himself,  injure  the  plaintiff.  They 
are  deemed  not  liable  for  the  misfortune.* 

811.  This   doctrine   however   is   not  accepted   by  all  the 

1  Identification,  in  any  such  sense  as  making  the  driver  or  manager 
of  the  vehicle  the  servant  or  agent  of  the  passenger,  had  been  ah-eady 
repudiated  by  Pollock,  B.,  in  Armstrong  v.  Lancashire  R.  Co.,  L.  R.  10 
Ex.  47,  52. 

2  See  The  Bernina,  supra. 

3  See  Mangan  r.  Atterton,  L.  R.  1  Ex.  239 ;  Clark  v.  Chambers,  3  Q.  B. 
Div.  327;  Waite  v.  Northeastern  Ry.  Co.,  El.  B.  &  E.  719;  Hughes  o. 
Macfie,  2  H.  &  C.  744;  Wright  v.  Maiden  R.  Co.,  4  Allen,  283  ;  Holly  v. 
Boston  Gas  Co.,  8  Gray,  123;  Callahan  v.  Bean,  9  Allen,  401 ;  Pittsburgh 
R.  Co.  V.  Vining,  27  Ind.  513 ;  Lafayette  R.  Co.  ;;.  Huffman,  28  Ind.  287. 
The  doctrine  would,  so  far  as  it  may  be  sound,  be  equally  applicable  of 
course  to  the  case  of  any  helpless  or  imbecile  person. 

*  Wright  V.  Maiden  Ry.  Co.,  4  Allen,  283. 


404  LAW  OF  TORTS.  [Part  III. 

American  courts,  and  has  often  been  met  by  the  same  an- 
swer that  has  been  given  to  tlie  doctrine  of  imputing  to 
passengers  the  negligence  of  their  carriers.  The  negligence 
of  a  parent  or  custodian  of  a  child,  it  is  well  said,  cannot 
properly  be  imputed  to  the  child;  and,  supposing  the  child 
incapable  of  negligence,  the  conclusion  is  reached  that  he  can 
recover  for  injuries  sustained  by  the  negligence  of  another, 
though  the  negligence  of  the  child's  parent  or  guardian  con- 
tributed to  the  misfortune.^ 

812.  It  is  clear  that  if  the  child  himself  be  guilty  of  con- 
tributory negligence  (supposing  hira  capable  of  negligence), 
Negligence  of  apart  from  the  negligence  of  his  parent  or  guar- 
chiid.  dian,  there  can  be  no  recovery;  and  whether  the 
child  be  capable  of  personal  negligence  is  a  question  of  fact, 
depending  upon  his  age  and  ability  to  take  proper  care  of 
himself.2  It  has  sometimes  been  said  that  the  same  discretion 
is  necessary  in  a  child  that  is  required  of  an  adult.^  This 
however  could  only  be  true,  it  should  seem,  in  those  cases  in 
which  the  child  is  sufficiently  mature  to  be  able  to  take  good 
care  of  himself.^  In  other  cases,  the  better  rule  is  that,  so 
far  as  the  question  of  the  child'' s  negligence  is  concerned, 
it  is  only  necessary  that  he  should  exercise  such  care  as  he 
reasonably  can,  or  as  children  of  the  same  capacity  generally 
exercise.^ 

813.  In  the  case  of  a  child  too  young  to  take  care  of  him- 
self, it  is  held  that,  if  the  negligence  of  the  parent  or  person 
in  charge  is  the  sole  proximate  cause  of  the  misfortune,  the 
defendant  cannot  be  liable.  For  example:  The  defendant,  a 
railway  company,  is  negligent  in  moving  a  train  along  one  of 

1  Evansville  v.  Senhenn,  1.51  Ind.  42;  Bellefontaine  R.  Co.  v.  Snyder, 
18  Ohio  St.  399;  North  Penn.  R.  Co.  v.  Mahoney,  57  Penn.  St.'l87; 
Cases,  586 ;  Louisville  Canal  Co.  v.  Murphy,  9  Bush,  .522  (Ky.). 

2  Lynch  v.  Nurdin,  1  Q,  B.  29 ;  Lynch  v.  Smith,  104  Mass.  52 ;  Evan- 
sich  V.  G.  Ry.  Co.,  57  Texas,  126  ;  Costello  v.  Third  Avenue  R.  Co.,  161 
N.  Y.  317. 

8  Burke  v.  Broadway  R.  Co.,  49  Barb.  .529. 

*  See  Western  R.  Co.  v.  Rogers,  104  Ga.  224. 

*  Lynch  v.  Smith,  supra;  Western  R.  Co.  v.  Rogers,  supra;  Costello  v. 
Third  Avenue  R.  Co.,  supra. 


Chap.  XVIII.  §  16.]  NEGLIGENCE.  405 

its  tracks.  The  plaintiff's  grandmother,  who  has  bought  of 
the  defendant  a  ticket  of  passage  for  herself  and  the  plaintiff, 
a  child,  negligently  attempts  to  cross  the  track  in  charge  of 
the  child,  and  the  child  is  injured  by  the  train.  The  defend- 
ant is  deemed  not  liable ;  the  defendant  having  the  right  to 
expect  that  the  lady  would  take  due  care  of  herself  and  of  the 
plaintiff.^ 

814.  It  is  however  clear  that  if  the  fault  of  the  person  in 
charge  of  the  child  was  not  a  proximate  cause  of  the  misfor- 
tune, the  defendant,  being  negligent,  will  be  liable. ^  The 
parent  or  other  person  in  charge  could  recover  for  an  injury 
done  to  himself  by  the  defendant's  negligence ;  and  a  fortiori 
should  a  young  child,  incapable  of  negligence,  be  entitled  to 
recover  in  such  a  case.  And  the  same  would  be  true  of  neg- 
ligence on  the  part  of  the  child  (supposing  him  capable  of 
negligence)  when  such  fault  did  not  contribute  as  a  proximate 
cause  to  the  injury.  For  example :  The  defendant,  a  hack- 
man,  carelessly  runs  over  a  child  five  years  of  age,  in  a  city, 
while  the  child  is  crossing  a  street  alone,  on  his  way  home 
from  school.  The  child  is  not  guilty  of  any  negligence  fur- 
ther than  may  be  implied  from  his  going  alone ;  in  regard  to 
this  the  child's  parent  may  be  negligent.  The  defendant  is 
liable;  the  negligence  of  the  child,  if  there  was  any  in  his 
going  alone,  and  of  the  parent,  if  found  to  exist,  not  contril)- 
uting  in  the  stricter  sense  to  the  misfortune,  since  it  is  not 
the  natural  and  usual  effect  of  a  child's  crossing  the  street 
that  he  should  be  run  over.^ 

815.  Indeed  it  is  not  clear  that  the  rule  should  not  be  that 
a  child  of  tender  years,  that  is  to  say,  incapable  of  negligence, 
should   be  able  to  maintain  an  action  for  the  injury  he  has 

^  Waite  V.  Northeastern  Ry.  Co.,  El.  B.  &  E.  719,  approved  in  The 
Bernina,  supra,  by  Lord  Esher,  12  P.  Div.  at  pp.  71-75.  See  13  App. 
Gas.  10,  16,  19.  This  assumes  that  the  defendant's  negligence  was  not 
also  a  proximate  cause  of  the  injury,  as  it  might  be,  as  where  the  person 
in  charge  of  the  child,  and  the  defendant,  were  driving  negligently  and 
came  into  collision.  But  there  is  ground  for  doubt  still  in  regard  to 
Waite's  Case. 

2  Ihl  V.  Forty-second  St.  R.  Co.,  47  N.  Y.  317,  323. 

8  Lynch  u.  Smith,  104  Mass.  52. 


406  LAW  OF  TORTS.  [Part  III. 

sustained  in  cases  of  this  kind,  though  the  person  in  charge 
was  guilty  of  contributory  negligence.  It  might  be  consid- 
ered enough  that  the  defendant's  act  or  omission  was  (though 
not  the  sole)  a  proximate  cause  of  the  damage.  And  the 
principle  of  the  recent  decisions  above  referred  to  in  regard  to 
passenger  and  carrier  appears  to  sustain  the  view  that  if  the 
negligence  of  each  of  the  persons  concerned  is,  as  it  might 
well  be,  a  proximate  cause  of  the  injury  to  the  plaintiff,  both 
of  them  are  liable. 

816.  If  the  parent  sue  for  himself,  upon  the  relation  of 
master  and  servant,  for  loss  of  service,  the  question  is  some- 

.  .  .    what  different.     If  the  child  be  incapable  of  neg- 

for  loss  of  ligence,  the  question  will  be  whether  the  parent's 
service.  negligence  contributed  in   the  stricter  sense   to 

the  misfortune ;  but  if  the  child  were  capable  of  negligence, 
and  were  in  fact  negligent,  it  may  be  that  negligence  of  his 
would  bar  an  action  against  another  by  the  parent,  as  a  mas- 
ter, for  loss  of  service  caused,  though  in  part  only,  by  the 
defendant's  negligence.^ 

817.  The  result  is,  that  whatever  particular  phase  a  case 
may  present,  be  it  contributory  negligence  or  an  intervening 
agency,  the  question  upon  which  the  defendant's  liability 
turns  must  be  whether  his  conduct  was  the  (or  was  a)  proxi- 
mate cause  of  the  damage,  or  only  a  condition  thereto. 

1  Marbury  Lumber  Co.  v.  Westbrook,  120  Ala.  179.  But  compare 
the  action  for  seduction,  ante,  pp.  135,  136.  See  also  Glassey  v.  Heston- 
ville  Ry.  Co.,  57  Penn.  St.  172. 


INDEX. 


INDEX. 


[The  references  are  to  the  paragraph  numbers.    The  italic  lines  indicate  the 

titles  to  sections  or  subjects.] 


A. 

ABRIDGMENTS, 

when  infringement  of  copyright,  573-575. 
ABSOLUTE   DUTY, 

breach  of,  as  subject  of  Part  II.,  50,  52. 
ABUSE  OF  PROCESS,   MALICIOUS, 

nature  of  the  wrong,  230. 

malice,  230. 

termination  of  proceedings,  231. 

probable  cause,  231. 
ACCIDENT, 

as  an  excuse  of  a  battery,  375,  376. 
(See  Negligence.) 
ACQUITTAL, 

in  suits  for  malicious  prosecution,  186-189,  192. 
ACTIO  PERSONALIS  MORITUR  CUM  PERSONA, 

applies  to  death  of  either  party,  107,  108,  391. 

death  of  servant,  391. 
ACTOR, 

hissing  an  actor  off  the  stage,  239. 
ADMINISTRATORS  AND  EXECUTORS, 

liability  for  negligence,  718. 
AFFRAYS, 

arrests  in  cases  of,  444. 
AGENCY, 

agent  distinguished  from  servant,  84,  85. 

general  liability  of  principal  for  torts  of  agent,  85. 

liability  of  innocent  principal  for  torts  of  agent,  86. 

misrepresentation  of  authority,  142, 143. 

liability  to  principals  for  negligence,  709-713. 

insurance  agent's  duties,  712,  713. 


410  INDEX. 

AMBIGUITY, 

distinguished  from  vagueness,  122. 

ANIMALS, 

property  in,  496. 

injuring,  496-499. 

What  must  be  proved,  638-643. 

notice  of  propensity,  638-643. 

■wild  animals,  639. 

domestic  animals,  640,  641. 

negligence  of  owner,  642. 

damage  by  animals  on  owner's  premises,  643. 

negligence  in  such  case,  643. 

injured  party  having  notice,  643. 

Escape  of  Animals,  644-646. 

duty  to  provide  fences,  644,  645. 

strays  from  common,  644,  note. 

escape  from  highway,  646. 

ARBITRATORS, 

not  liable  for  negligence,  727. 

ARREST.     {See  False  Imprisonment.) 
ASSAULT    AND   BATTERY, 

Assault,  363-369. 

definition,  363. 

intention,  364. 

putting  in  fear,  364,  365. 

hostile  attitude,  366. 

distance  of  parties  from  each  other,  367,  368. 

damage,  369. 

Batteri/,  370-378. 

definition,  370. 

contact,  370-372. 

battery  from  a  distance,  373. 

negligence,  374. 

accident,  375,  376. 

acts  done  in  sport,  377. 

hostile  acts,  377. 

taking  property,  378. 

Justifiable  Assault,  379-386. 

•what  amounts  to,  379,  380. 

acts  of  parents  and  schoolmasters,  379. 

self-defence,  380. 

protection  of  property,  381-384. 

amount  of  force  which  may  be  used,  381-383. 

*  molliter  manus  imposuit,'  383,  note. 

request  before  assault,  384. 

defence  of  family,  385.  -'  =    '-•  '  - 


INDEX.  411 


ASSAULT   AND   BATTERY,— continued. 

defence  of  master,  385. 

defence  of  servant,  385. 

quelling  a  riot,  386. 

Violence  to  Another's  Servants,  387-391. 

double  right  of  action,  387. 

servant's  right,  387. 

master's  right,  387. 

parent's  right,  388,  389. 

breaches  of  contract,  390. 

death  of  servant  or  wrong-doer,  391. 

punishment  of,  not  infamous,  297,  note. 
ASSIGNEES, 

liability  for  negligence,  718. 
ASSIGNMENT   OF   ACTION, 

actions  for  tort  not  assignable,  109. 

with  certain  exceptions,  109. 

ground  of  rule,  109. 
ASSUMING   THE   RISK, 

meaning  of  expression,  753-764:. 

party  must  be  '  volens '  to  risk,  753-763. 
ATTACHMENT, 

preventing  by  misrepresentation,  169. 

malicious,  225-227. 
ATTORNEY, 

liability  of,  for  false  imprisonment,  425-428. 

for  negligence,  696-701. 

B. 

BAILOR   AND   BAILEE, 

duties  of  bailee,  679-688. 

(See  Negligence.) 

BASTARDY, 

charge  of,  310. 
BATTERY.    (See  Assault  and  Battery.) 

BLASTING, 

damage  from,  656. 
BUSINESS  SIGNS, 
fraud  as  to,  174. 

C. 
CARRIER, 

exemption  of,  for  negligence,  18,  note, 
general  duties  of  common  carrier,  679. 
identification  of  passenger  with,  807-809. 


412  INDEX. 

CAUSE, 

causa  proxima,  97,  98. 

legal  theory  of,  97,  98. 

results  which  were  natural  or  probable,  99,  100. 

results  not  foreseen,  100. 

liability  for  results  turns  on  duty,  101. 

intervention  of  human  agency,  103-105. 

CERTAINTY, 

required  in  representations,  119. 

CHARITABLE   CORPORATIONS, 

liability  of,  for  tort,  74. 

CHILDREN, 

negligence  of,  812-815. 

CIRCUITY   OF   ACTION, 
avoidance  of,  775-784. 

CLERK   OF    COURT, 

improper  writ  issued  by,  417-419. 

COMBINATION, 

whether  to  combine  is  to  use  '  means,'  238-240. 

power  to  do  what  a  single  person  might  not  be  able  to  do,  239. 

COMMON   CARRIER, 

general  duties  of,  619. 

COMPARATIVE   NEGLIGENCE, 

meaning  of,  797. 

CONCEALMENT.     (See  Deceit.) 
CONDITION, 

distinguished  from  cause,  94,  95. 
CONDONATION, 

of  wife's  infidelity,  286. 

CONFIDENTIAL   RELATIONS, 

dealings  between  parties  to,  161. 

in  actions  for  defamation,  348. 
CONSENT, 

maxim  volenti  non  fit  injuria,  18. 

of  servant,  in  assuming  risks,  753-764. 

servant  must  be  '  volens '  to  risk,  753-763. 
CONSPIRACY, 

to  procure  refusal  to  contract,  238-240. 

as  '  means,'  238-240. 
CONTACT, 

in  assault  and  battery,  370-372. 

in  false  imprisonment,  393. 

in  possession,  456. 


INDEX.  413 


CONTRACT, 

relation  of,  to  tort,  54-56. 

fraud  in,  56. 

Malicioushj  Procuring  Refusal  of,  233-237. 

use  of  wrongful  means  to  that  end,  233. 

change  of  current  of  authority  as  to  malice,  235. 

the  better  rule,  236. 

motive,  237. 

Maliciuus  Hindrance  of  Business,  242-245. 

doubts  on  the  subject,  245. 

Procuring  Breach  of  Contract,  246-255. 

in  cases  of  master  and  servant,  246,  248. 

what  must  be  proved,  247. 

in  cases  of  contract  in  general,  248-254. 

Statute  of  Laborers,  246,  note. 

notice  of  the  contract,  247,  note. 

performance  of  contract  not  begun,  249. 

objections  to  the  right  of  action  in  general,  250-253. 

unenforceable  contract,  254. 

damage,  255. 
CONTRIBUTORY   FAULT, 

what  constitutes,  92-96. 

conditions  distinguished  from  causes,  94,  95. 

{See  Negligence.) 
CONVERSION, 

What  must  be  Proved,  500. 

Possession,  501-509. 

necessity  of,  501. 

right  of  possession,  502. 

special  property,  503,  504. 

possession  without  right,  505 

jus  tertii,  .506. 

finding,  507,  508. 

meaning  of  possession,  509. 

What  constitutes  Conveision,  510-538. 

usurping  ownership,  510. 

distinction  between  trespass  and  conversion,  510. 

sale  without  authority,  512,  513. 

knowledge  of  title,  514. 

effect  of  fraud  in  sale,  515,  516. 

sale  with  right  of  repurchase,  517. 

conditional  sale,  518. 

sale  of  pledge,  519. 

sale  of  qualified  interest,  .520,  521, 

sale  of  part,  522-524. 

permitting  another  to  sell  one's  goods,  525. 

appropriating  article  to  use  not  intended,  526. 


414  INDEX. 

CONVERSION,  —  continued. 

injury  of  chattel,  527. 

mere  assertion  of  dominion,  528. 

converting  to  use  of  third  person,  529-531. 

intention  to  convert,  530. 

conversion  between  cotenants,  532. 

demand  and  refusal,  533-538. 

refusal  only  prima  facie  conversion,  537. 
COPYRIGHT, 

Infringement  of,  561-578. 

statutory  provisions,  561,  562. 

■what  belongs  to  authors,  563. 

intention,  564,  567. 

piracy  as  to  quantity,  565,  566. 

selections,  568. 

quotation  for  criticism,  569. 

imitation  of  copyrighted  matter,  570,  571. 

common  sources  of  information,  572. 

abridgments,  573-575. 

digests,  576. 

translations,  577. 

damages,  578. 
CORPORATIONS, 

liability  for  tort  in  general,  73,  74. 
for  particular  torts,  74. 
in  cases  of  charities,  74. 

torts  of  directors,  143,  720-722. 
CRIME, 

abridgment  of  rights  for,  75. 

connection  of,  with  tort,  38,  60. 

imputation  of,  289,  297-300. 
CRIMINAL   CONVERSATION, 

action  for,  281-286. 
CRITICISM, 

not  defamation,  358. 

fair  criticism,  358. 

of  works  of  art,  359. 

of  conduct  of  public  men,  360,  361. 
CUSTOMERS, 

injuries  to,  by  condition  of  premises,  743-752. 

D. 
DAMAGE, 

term  explained,  57-59. 

special  damage,  when  and  when  not  to  be  proved,  58. 

mental  suffering,  59. 


INDEX.  415 

DAMAGE,  —  continued. 

in  deceit,  167,  168. 

in  slander  of  title,  175,  176. 

in  malicious  prosecution,  235,  236,  242,  255. 

in  procuring  refusal  to  contract,  233. 

in  procuring  breach  of  contract,  247. 

in  seduction,  257,  273,  281. 

in  slander,  291-296. 

in  assault  and  battery,  369,  370,  388. 

in  false  imprisonment,  392. 

in  trespass,  448,  475. 

in  conversion,  500,  527. 

in  infringements  of  patents  and  copyrights,  539,  561. 

in  violation  of  rights  of  support,  579,  580,  598. 

in  violation  of  water  rights,  602. 

in  nuisance,  630-637. 

by  animals,  638-644. 

in  escape  of  dangerous  elements  or  substances,  647,  650. 

in  negligence,  657,  664. 
DANGEROUS   THINGS,  ESCAPE   OF, 

Nature  of  Protection  required  against,  647-656. 

use  of  land  in  ordinary  condition,  648,  649. 

mines  and  reservoirs,  648,  649. 

damage  by  vis  major  or  act  of  God,  650. 

legislative  authority,  651,  652. 

American  Law,  653-656. 

not  settled,  653. 

points  in,  654-656. 
DEATH, 

actio  personalis  moritur  cum  persona,  107. 

of  either  party  terminates  liability,  107,  108. 
except  in  what  cases,  108. 
DECEIT, 

elements  of  action  for,  110. 

The  Representation,  111-138. 

definition  of  'representation,'  111. 

how  representation  differs  from  warranty,  112-114. 

warranty  treated  as  representation,  115. 

representation  requires  a  statement  or  an  act,  116. 

silence,  116,  117. 

concealment,  117. 

representation  should  create  a  clear  impression,  119. 

language  not  necessary,  120,  121. 

difference  between  vagueness  and  ambiguity,  122. 

impression  of  fact  required,  123. 

opinion  involves  fact,  123. 

false  opinion  may  be  actionable,  124. 


416  INDEX. 

DECEIT,— continued. 
prediction,  125. 

misleading  contrast  between  fact  and  opinion,  126. 
statements  must  be  sufficient  to  influence  conduct,  127-130. 
statements  of  value,  127,  128. 
statements  of  income,  129. 

statements  concerning  a  man's  pecuniary  condition,  130. 
representation  of  law,  131. 

taking  advantage  of  ignorance  of  law,  132,  133. 
materiality,  134. 
falsity,  136-138. 
literal  sense  of  words,  138. 
Defendant'' s  Knowledge  of  FalsiHj,  139-144. 
honest  statement  of  fact  generally  not  actionable,  139,  140. 
negligence  not  enough,  139. 

matters  within  the  party's  peculiar  means  of  knowledge,  141-144. 
representations  by  agents  concerning  their  authority,  142,  143. 
representations  by  directors  of  corporations,  143. 
what  creates  duty  to  know,  144. 
Ignorance  of  the  Plaintiff,  145-1G2. 

knowledge  of  facts  by  plaintiff  fatal  to  action,  145,  146. 
belief  in  defendant's  statements,  146. 
making  investigation,  147,  148. 
when  plaintiff  bound  to  know  the  facts,  149. 
means  of  knowledge,  150. 
means  of  knowledge  at  hand,  151,  152. 
necessitj^  of  reading  contract,  153. 
fraudulent  misreading,  153. 

damages  recoverable  witliout  rescission,  154,  155. 
prudence  disarmed  by  misrepresentation,  156. 
negligence  of  party  deceived,  156. 
partial  examination  of  facts  by  him,  157. 
concealment  fi-om  him,  159. 
sale  with  faults,  160. 
parties  not  on  equal  footing,  161. 
acceptance  of  property,  162. 

Intention  that  Representation  should  be  acted  on,  163-166. 
when  to  be  expressly  shown,  l(i3,  164. 
in  bargains  between  plaintiff  and  defendant,  165. 
intent  to  injure  not  necessary,  166. 
Acting  on  Representation,  167-170. 
damage,  167,  168. 

preventing  one  from  attaching  property,  169. 
when  plaintiff  entitled  to  act  on  representation,  170. 
Kindred  Wrong:   Quasi  Deceit,  171-174. 
trademarks  and  trade  names,  171-173. 
wrongful  iise  of  business  sign,  174. 


INDEX.  417 

DEFAMATIOX.     {See  Slander  and  Libel.) 
DEMAND   AND   REFUSAL, 

when  necessary  to  constitute  conversion,  533-538. 
DESIGNS, 

infringements  of  patents  for,  553, 
DETENTION, 

of  prisoner  by  officer,  405-407. 

DIGESTS, 

when  infringements  of  copyright,  576. 

DIRECTORS   OF   CORPORATION, 

misrepresentations  by,  143. 

liability  of,  for  negligence,  720-722. 
DISEASE, 

imputation  of  having  disgraceful,  301,  302. 
DISMISSAL    OF   SUIT, 

in  actions  for  malicious  prosecution,  187. 

DOCK-OWNERS, 

duty  of,  745,  749. 

DOMESTIC    ANIMALS, 
damage  by,  640,  6-11. 

DOMESTIC   SERVAN'lb', 

distinction  as  to,  88. 

DRUNKENNESS, 

imputation  of,  against  a  woman,  298,  note. 

DUTY, 

the  correlative  of  right,  1. 
as  basis  of  law  of  torts,  1,  22-28. 
as  ground  of  privilege,  10,  20. 
moral,  20. 
Legal  Duty,  22-56. 
tort  on  the  side  of,  22. 
legal  duty  explained,  23,  24. 
division  of  legal  duty,  25-28. 
basis  of  division,  26. 

intention  and  negligence  touching  duty,  27. 
the  same  distinguished,  27. 
divisions  named,  28. 
wrongful  means,  28,  30,  31. 
fraud  as  means,  31. 
malice  and  negligence,  32. 
malice  in  civil  liability,  35-47. 
duty  to  whom  owed,  53. 
duty  paramount,  .54-56. 

duty  as  ground  of  liability  for  consequences  of  tort,  101,  102. 

27 


418  INDEX. 

E. 

EFFIGY, 

defamation  by,  318. 

ENTICING  AWAY.     (See  Seduction.) 

ENTRY, 

doctrine  of  relation  of  entry,  469. 

various  privileges  and  rights  of  entry,  478-489. 

forcible,  480,  note. 

by  fireman,  752. 

by  letter-carrier,  752. 

by  policeman,  752. 
ESCAPE   OF   ANIMALS.     (See  Animals.) 
ESCAPE   OF  DANGEROUS   THINGS, 

Nature  of  Protection  required,  647-656. 

mines  and  reservoirs,  648,  649. 

vis  major  and  act  of  God,  650, 

legislative  authority,  651,  652. 

fall  of  snow  or  ice,  654. 

damage  from  blasting,  655. 

explosion  of  boiler,  656. 
EXECUTIVE   DEPARTMENT   OF   STATE, 

privilege  of,  64,  66. 
EXECUTORS   AND    ADMINISTRATORS, 

liability  for  negligence,  718. 

EXPLOSION, 

damage  from,  656. 


F. 

FALSE   IMPRISONMENT, 

Nature  of  Restraint,  392-397. 

prison-walls  not  necessary,  392,  397. 

contact  not  necessary,  393. 

submission  to  restraint,  393-395. 

power  of  movement,  394. 

consent,  395. 

circumscribing  restraint,  396. 

Arrest  with  Warra7it,  398-432. 

officer's  justification,  398. 

arrest  of  wrong  person,  399. 

misleading  officer,  400. 

description  in  writ  of  person  intended,  401. 

misnomer,  402, 

acts  in  excess  of  authority,  403. 


INDEX.  419 


FALSE  IMFRISO^^MENT,— continued. 

oppressive  conduct,  404. 

detention  after  writ  has  expired,  405-407. 

detention  on  other  writs,  406. 

retaking  escaped  prisoner,  408. 

in  civil  cases,  408. 

in  criminal  cases,  409. 

invalidity  of  writ,  and  effect  on  officer,  410. 

writ  void  or  not,  when,  410-413. 

jurisdiction  of  court,  414-416. 

officer's  liability  restated,  416 

liability  of  clerk,  417-419. 

liability  of  judge,  420-423. 

summary,  424. 

liability  of  plaintiff  and  his  attorney,  425-428. 

false  representations  and  mistake,  426,  427. 

irregularity  and  error,  427,  note. 

summary,  429. 

distinction  between  civil  and  criminal  cases,  430. 

setting  aside  the  writ;  431. 

distinguished  from  malicious  prosecution,  432. 

Arrest  without  Warranty  433-447. 

when  proper,  433-434. 

arrest  on  the  spot,  435. 

on  suspicion  of  felony  by  officer,  436. 

reasonable  cause,  436-441. 

misdemeanor,  442. 

arrest  after  termination  of  breach  of  peace,  443. 

affrays,  444. 

right  of  private  citizen  to  arrest,  445-447. 
FELLOW-SERVANTS, 

negligence  of,  758. 

who  are,  758. 
FINDING, 

gives  right  of  possession  against  wrong-doer,  507,  508. 
FIREMAN, 

entering  premises,  752. 

FORCIBLE   ENTRY, 

by  license,  480,  note. 

FOX'S   ACT, 

practice  under,  288,  note. 

FRAUD, 

as  wrongful  means,  31-34. 
division  of,  33. 
meaning  of  term,  33. 
as  an  element  of  deceit,  34. 


420  INDEX. 

FRAUD,  —  continued. 

as  evidence  of  malice,  179,  180. 

as  an  element  of  deceit,  see  Deceit. 

FRUIT, 

falling  upon  another's  land,  486. 

G. 

GRATUITY, 

interfering  with  enjoyment  of,  7,  8. 

GUARDIAN   AND   WARD, 

seduction  of  ward,  271-273. 


H. 

HARBORING, 

of  wife,  278-280. 

HIGHAVAYS, 

obstructing,  635-637. 

HOUSES, 

fall  of,  581-588. 

HUSBAND   AND   WIFE, 

communication  of  defamation  by  either  to  the  other,  291,  note. 

accusation  of  either  in  presence  of  the  other,  291,  note. 

harboring  wife,  278-280. 

seduction  or  enticement  of  wife,  274-286. 

infidelity  of  husband,  283. 

negligence  of  husband,  284,  285. 

condonation  of  offence,  286. 


I. 

IDENTIFICATION, 

of  passenger  with  carrier,  807-809. 

IMPRISONMENT.     (See  False  Imprisonment.) 

IMPUTABILITY, 

of  negligence  of  parent  or  guardian  to  child,  810-817. 

INDEPENDENT  CONTRACTOR, 

torts  of,  89. 

liability  of  employer,  89-91. 

INFAMOUS  PUNISHMENTS, 

what  are,  297. 

INFANTS, 

liability  for  tort,  67,  68,  70-72. 


INDEX.  421 


INNKEEPERS, 

general  duties  of,  676-678. 
INSANE  PERSONS, 

liability  for  tort,  69,  71. 
INSURANCE  AGENTS, 

duties  of,  712,  713. 
INTENTION, 

intending  the  natural  consequences  of  tort,  102. 

in  deceit,  163-166. 

in  assault  and  battery,  364. 

in  conversion  of  goods,  530. 
INTEREST, 

as  a  ground  of  duty,  21. 
INTERPRETATION  OF  LANGUAGE, 

in  cases  of  slander,  288-290. 


J. 
JEOPARDY, 

in  suits  for  malicious  prosecution,  192. 
JUDICIARY, 

privilege  of  members  of,  64-66. 

liability  of  magistrate  for  false  imprisonment,  65. 

judge  not  liable  for  negligence,  727. 
JURISDICTION, 

want  of,  as  to  malicious  prosecution,  217. 
JUSTIFICATION, 

of  privilege,  17. 


K. 

KNOWLEDGE  OF  FALSITY, 

by  defendant  in  suits  for  deceit,  139-144. 
by  plaintiff,  145-162. 


L. 

LANDLORD  AND  TENANT, 

landlord's  right  of  action  for  injury  to  reversion,  459. 

negligence  by  either  or  both,  778-784. 

(.See  Negligence.) 
LANGUAGE, 

interpretation  of,  288-290. 
LATERAL  SUPPORT.     {See  Support  of  Land  and  Buildings.) 


422  INDEX. 

LAWYERS, 

advice  of,  in  malicious  prosecution,  204-209. 
liability  for  false  imprisonment,  425-428. 
for  negligence,  696-701. 

LECTURES, 

unauthorized  publication  of,  561,  note,  562,  note. 

LEGAL  ADVICE, 

acting  on,  in  making  arrest,  204-209. 
LETTER-CARRIER, 

invited  to  enter,  752. 
LEGISLATIVE  DEPARTMENT, 

privilege  of  members  of,  64,  66. 
LIBEL.     (See  Slaxder  and  Libel.) 
LICENSE, 

nature  and  kinds  of,  3,  15,  18,  478-489,  731-752. 

revocation  of,  479,  480. 

duty  to  licensee  in  regard  to  condition  of  premises,  731-752. 
{See  Negligence  ;  Trespass.) 
LITERARY  CRITICISM, 

when  libellous,  358. 
'  LOOK  AND  LISTEN,' 

as  a  requirement  in  crossing  railways  or  highways,  793. 


M. 

MACHINES, 

infringement  of  patents,  547-552. 
MAINTENANCE, 

actions  for,  232. 
MALICE, 

a  perplexing  term  in  law,  35. 

subjective,  but  not  necessarily  motive,  35-37. 

interrupting  a  relation,  with  notice,  36,  37. 

further  departure  from  primary  sense,  87. 

explanation  of  use  of  term  in  this  way,  38. 

summary  division  of  malice  as  an  element  of  liability,  39. 

malice  as  motive,  39-47. 

as  signifying  reckless  conduct,  39,  40. 

malicious  prosecution  explained  in  regard  to  malice,  41-43. 

slander  of  title  as  to  malice,  45,  177-179. 

malice  cannot  overturn  legal  right,  46,  47,  235,  236. 

benefiting  defendant  at  expense  of  plaintiff,  47,  note. 

Roman  law  of  malice  as  motive,  47,  note. 

malicious  damage  as  presumptively  actionable,  47. 

Maliciously  Procuring  Refusal  to  Contract,  233-237. 


INDEX.  423 


MALICE,  —  continued. 

use  of  wrongful  means  to  that  end,  233. 
change  of  current  of  authority  as  to  malice,  235. 
the  better  rule,  236. 

motive  in  procuring  refusal  to  contract,  237. 
effect  of  conspiracy  iu  such  cases,  238-240. 

whether  conspiracy  is  '  means,'  238-240. 

malice  becoming  '  means,'  241. 

Malicious  Hindrance  of  Business,  242-245. 

doubts  on  the  subject,  245. 

Procuring  Breach  of  Contract,  24G-255. 

(See  Contract.) 

notice  of  the  contract,  247,  note. 
MALICIOUS  APPEALS, 

statute  of,  192,  note,  194,  note. 
MALICIOUS   PROSECUTION, 

What  must  be  Proved,  181. 

civil  suits  of  malice,  182. 

Termination  of  the  Prosecution,  183-193. 

reason  for  requiring,  183,  181. 

conviction,  185. 

acquittal  of  party  prosecuted,  186-189,  192. 

term  'acquittal'  loosely  used,  186,  note. 

civil  suit  terminated,  how,  187. 

dismissal  of  action,  187. 

discontinuance,  187. 

judgment  for  defendant  in  former  suit  necessary,  189. 

criminal  suit  terminated,  how,  190. 

dismissal  by  prosecuting  officer,  190. 

return  of  '  not  found,'  191. 

prosecution  before  magistrate,  191. 

dismissal  of,  191. 

jeopardy  of  prisoner,  192. 

Statute  of  Malicious  Appeals,  192,  note,  194,  note. 

summary,  193. 

Want  of  Probable  Cause,  194-211. 

meaning  of  term,  194. 

in  the  old  law,  194,  note. 

slight  circumstances  of  suspicion,  195. 

honest  belief,  196. 

time  from  which  to  decide,  197-201. 

subsequent  evidence,  198. 

judgment  of  conviction,  199. 

action  of  grand  jury  or  magistrate,  200,  201. 

discontinuance  of  suit,  202. 

abandonment  of  prosecution,  203. 

advice  of  lawyer,  204-209. 


424  INDEX. 

MALICIOUS   PROSECUTION,  —  continued. 

evidence  of  malice  not  proof  of  want  of  probable  cause,  210. 

probable  cause  a  question  of  law,  211. 

Malice,  212,  213. 

evidence  of,  212. 

a  question  of  fact,  213. 

Damage,  214-216.  s 

when  to  be  proved,  214. 

Want  of  Jurisdiction,  217. 

what  action  is  proper,  217. 

Kindred  Wrongs,  218-232. 

names  of  such  wrongs,  218. 

how  they  differ  from  malicious  prosecution,  219. 

malicious  arrest,  220-224. 

malice  and  probable  cause,  221. 

termination,  222. 

damage,  223. 
malicious  attachment,  225-227. 

malice  and  probable  cause,  225. 

termination,  226. 

statutory  attachment,  227. 
malicious  execution,  228. 

malice  and  excessive  levy,  228. 
malicious  search,  229. 

statutory  and  constitutional  provision  as  to,  229. 

what  must  be  proved,  229. 
malicious  abuse  of  process,  230,  231. 

what  must  be  proved,  230. 

malice,  230. 

termination,  231. 

probable  cause,  231. 
maintenance,  232. 

MANUSCRIPT, 

copyright  in,  562,  note. 

MARRIAGE, 

breach  of  promise  of,  moritur  cum  persona,  107,  note. 

MASTER  AND    SERVANT, 

nature  of  the  relation,  76. 

when  servant  not  liable  for  his  acts,  76-78. 

ground  of  master's  liability,  78,  79. 

meaning  of  scope  of  employment,  80. 

wilful  torts  of  servant,  81. 

ceasing  to  act  for  master,  82. 

enticing  away  servant,  246,  247. 

seduction  of  child  as  servant,  256,  257,  261,  266-269,  271-273. 

charges  by  master  affecting  servant's  character,  306,  346. 


INDEX.  425 

MASTER   AND   SERVANT, —  con^mue^/. 
defence  of  master,  385. 
defence  of  servanf,  385. 
servant's  riglit  of  action  for  battery,  387. 
master's  right  of  action  for  battery  of  servant,  387. 
death  of  servant,  391. 
servant  has  no  possession,  457. 
servant's  liability  to  master,  715. 
injuries  to  servants  by  condition  of  master's  premises  or  machinery, 

753-764. 
Assuming  the  Risk,  753-764. 
negligence  of  fellow-servant,  758. 

MAXIiMS, 

volenti  non  fit  injuria,  18,  753-764. 

actio  personalis  moritur  cum  persona,  107,  108,  391. 

MEANS   OF   KNOWLEDGE, 

in  actions  for  deceit,  150. 

MEDICAL   MEN, 

duties  of,  702-704. 
MENACES, 

actionable  if  followed  by  special  damage,  363,  note. 
MENTAL  DISTRESS, 

as  special  damage,  59,  264. 
MILLS.     (See  Watercourses.) 
MISDEMEANOR, 

false  charge  of  committing,  299. 

arrests  for,  442. 
MORAL   DUTY, 

as  ground  of  privilege,  20. 
MORAL   TURPITUDE, 

offences  involving,  297-299. 
MOTIVE.     (.See  Malice;  Slander  axd  Libel.} 


N. 

NECESSITY, 

entry  from,  489. 
NEGLIGENCE, 

as  the  subject  of  Part  III.,  26-28,  51,  52. 

WJiat  must  be  Proved,  657. 

elements  of  liability,  657. 

Legal  Conception  of,  659-675. 

a  technical  term,  659. 

rashness  and  wantonness,  600. 

misconduct  causing  unintended  harm,  661. 


426  INDEX. 

NEGLIGENCE,  —  continued. 

manifestation  of  conduct,  not  attitude  of  mind,  662. 

active  and  passive  negligence,  663. 

definition  of  negligence,  66-1. 

omissions,  665,  666. 

standard  of  liability,  667,  671. 

undertaking  acts,  668-670. 

common  cases,  672. 

question  usually  put  to  the  jury,  672. 

province  of  court  and  jury,  673,  674. 

special  cases,  675. 

Innkeeper  and  Guest,  676-678. 

negligence  of  guest,  676,  678. 

Bailor  and  Bailee,  679-688. 

common  carriers,  679. 

degrees  of  negligence,  680-684. 

Roman  law  misunderstood,  682. 

tendency  of  authority,  683. 

the  true  criterion,  684. 

bailment  for  hire,  685. 

'  gross  negligence,'  '  ordinary  care,'  '  negligence,   686. 

gratuitous  bailor's  duty,  687,  688. 

bailment  for  services,  689-693. 

exercise  of  ordinary  care  or  skill,  689-691. 

employment  of  unskilled  help,  692,  693. 

Professional  Services,  694-704. 

extraordinary  skill  not  required,  694. 

duties  of  attorneys,  696-701. 

duties  of  medical  men,  702-704. 

Telegraph  Companies,  705-708. 

care  in  transmitting  messages,  705,  706. 

conditions  limiting  liability,  707. 

liability  to  him  to  whom  the  message  is  sent,  708. 

Duty  of  Agents,  Servants,  Trustees,  and  the  Like,  709,  722. 

agent's  liability  to  principal,  709,  710. 

extraordinary  emergencies,  711. 

agents  for  insurance,  712,  713. 

servant's  liability  to  master,  715. 

ratification,  716. 

liability  of  trustee,  717-719. 

executors,  administrators,  and  assignees,  718. 

obtaining  legal  advice,  719. 

directors  of  corporations,  720-722. 

Public  Bodies  and  Public  Officers,  723-727. 

officers  of  government,  723. 

suits  by  individuals,  724. 

liability  for  acts  of  subordinates,  725. 


INDEX.  427 

NEGLIGENCE,  —  continued. 
officers  of  the  courts,  726. 
judges  and  arbitrators,  727. 
Use  of  Premises,  728-752. 
duty  of  occupant  to  trespassers,  729,  730. 
to  bare  licensees,  731-734. 
wanton  injury  to  such  licensees,  731. 
special  duties  imposed  by  law,  732. 
straying  animals,  735. 
invited  licensees,  736-742. 
public  and  quasi-public  ways,  737-740. 
nature  of  the  invitation,  741. 
notice  of  defect,  742. 
customers,  743-752. 
nature  of  duty  to  such,  743,  744. 
rule  stated,  744. 
duty  of  dock  owners,  745,  749. 
place  where  injury  happened,  746-748. 
fall  down  stairway,  750. 
business  of  the  occupant,  751. 
meaning  of  '  customer,'  752. 

Master  and  Servant:  Assuming  the  Risk,  753-764. 
exemption  of  master,  753,  754. 
master's  duty,  753,  754. 
ordinary  risks,  756. 
extraordinary  risks,  757,  760-762. 
negligence  of  fellow-servant,  758. 
who  are  fellow-servants,  758. 
assuming  risk,  a  technical  term,  763. 
not  contributory  negligence,  764. 

Independent  Contractors :  Control :  Collateral  Negligence,  765-773. 
distinguished  from  servants  and  agents,  76.5,  766. 
negligence  as  mere  matter  of  detail,  766,  770. 
vice  in  the  work,  767-769. 
ground  of  doctrine,  768. 
no  delegation  of  duty,  768. 
control,  768,  769. 
collateral  negligence,  770. 

difficulties  of  the  doctrine  of  independent  contractors,  771. 
sub-contractors,  772. 

Completion  of  Work:  Sale  of  Chattel:  Lease  of  Premises,  774-784. 
vice  in  the  work,  774,  775. 
inspection,  774,  775. 
circuity  of  action,  775. 
delegation  of  duty,  776. 
extinction  of  duty,  776. 
remote  vendor  of  dangerous  article,  777. 


428  INDEX. 

NEGLIGENCE,  —  continued. 

duty  of  lessor  of  premises,  778-784. 

neo-lifrence  of  landlord,  778-780. 

negligence  of  tenant,  781. 

duty  to  plaintiff,  782. 

mixed  tenancy,  783. 

circuity  of  action,  784. 

Contributory  Fault,  785-796. 

meaning  of  '  contributory,'  785,  786. 

ground  of  doctrine,  785,  786. 

mere  conditions,  787. 

naturally  tendency  to  harm,  788-790. 

unlawful  acts  not  per  se  contributory,  789,  790. 

violations  of  Sunday  law,  791,  792. 

'  look  and  listen,'  79-3. 

'  due  care,'  794-796. 

Comparatice  Negligence,  1Q1. 

Intervening  Forces,  798-817. 

unforeseen  forces,  798-800. 

cases  growing  out  of  contract,  801-806. 

identification  of  passenger  with  carrier,  807-809. 

imputability  of  parent's  negligence  to  child,  810-817. 

negligence  of  child,  812-815. 

suit  by  parent  for  loss  of  service,  816. 

NEWSPAPERS, 

are  not  privileged,  in  the  law  of  defamation,  337. 

NOLLE   PROSEQUI, 

in  suits  for  malicious  prosecution,  190. 

NOTICE, 

by  registration,  152. 

of  vicious  propensity  of  animals,  638-643. 
of  danger,  729. 
spring  guns,  729,  note. 
NUISANCE, 

overhanging  trees,  486,  note. 

What  constitutes,  615-629. 

duration,  615. 

locality,  616. 

'convenient'  place,  616-618. 

slight  detriment  to  property,  619. 

notice  of  nuisance,  620. 

flooding  a  neighbor's  land,  621,  622. 

surface-water,  623. 

water  of  drains  and  ditches,  623. 

pollution  of  streams,  624. 

milling  operations,  625. 


INDEX.  429 

NUISAXCE,  —continued. 

smells  and  gases,  626-628. 

disturbance  of  peace  of  mind,  629. 

public  nuisances,  630-637. 

special  damage,  630-637. 

removing  obstructions,  635. 

circuitous  routes  made  necessary  by  obstructions,  636,  637. 


0. 

OFFICERS.     (See  Assault  and  Battery  ;  Directors  of  Corpora- 
tions ;  False  Imprisonment  ;  Public  Officers.) 


P. 

PARENT  AND  CHILD, 

seduction  of  child,  257-270. 

injury  of  child  by  parent's  negligence,  810-817. 

PARTY  WALLS, 

duty  in  regard  to,  590-596. 

PASSENGER, 

identification  of,  with  carrier,  807-809. 

PATENTS, 

Infringement  of,  539-558. 

statutory  provisions,  539. 

making,  using,  or  vending,  539. 

'  invention,'  '  discovery,'  '  principle,'  540,  541. 

new  and  useful  thing,  542. 

subjects  of  patent,  543. 

infringement,  544. 

variation,  544. 

machines,  547-552. 

mechanical  equivalents,  548. 

better  execution,  549. 

additional  effect,  550. 

difference  in  substance,  551. 

equivalents,  552. 

designs,  553. 

making  for  experiment,  554,  555. 

unauthorized  sale,  556. 

sale  of  product  of  patented  machine,  557. 

false  mark  of  patent,  558. 

PERJURY, 

false  charges  of,  289. 


430  INDEX. 

PHYSICIANS  AXD  SURGEONS, 

duties  of,  702-704. 
PILLORY, 

an  infamous  punishment,  297,  note. 
PLEDGE, 

sale  of,  519. 
POLICEMAN, 

entry  of  premises  by,  752. 
POLLUTION  OF  STREAM, 

as  a  nuisance,  624. 

legislative  authority  for,  624. 
POSSESSION, 

in  trespass,  449-458. 

in  conversion,  501-509. 

{See  Conversion;  Trespass.) 
POSTMAN, 

entry  of  premises  by,  752. 
PREMISES, 

use  and  condition  of,  728-752. 

(See  Negligence.) 
PRINCIPAL  AND  AGENT.     {See  Agency.) 
PRIVILEGE, 

defined  and  explained,  15-21. 

may  include  right,  15. 

by  the  party,  16.  •' 

by  the  lavr,  16. 

as  justification,  17. 

ground  of,  rests  in  interest  or  duty,  18-21. 
PRIVILEGED   COMMUNICATIONS, 

in  slander  and  libel,  319-357. 

{See  Slander  and  Libel.) 
PROBABLE   CAUSE, 

want  of,  194-211,  436-441. 
PROCURING   BREACH   OF   CONTRACT.     (5ee  Contract.) 
PROCURING  REFUSAL   TO  CONTRACT.     (See  Contract.) 
PROFESSIONAL   SERVICES, 

duties  by  persons  rendering,  694-704. 

(See  Negligence.) 
PROSECUTION, 

termination  of,  183-193. 

want  of  jurisdiction,  217. 
PUBLICATION, 

of  slander  or  libel,  291. 
PUBLIC    MEN, 

criticism  of,  360,  361. 


INDEX.  431 


PUBLIC  OFFICERS, 

liability  for  negligence,  723-727. 
PUBLISHERS  OF   BOOKS  AND   PAPERS, 

liable  for  defamation,  313,  314. 
PUNISHMENT, 

when  infamous,  297. 

R. 

RAILWAY   TIME-TABLES, 

representations  by,  141,  note. 

RASHNESS, 

legal  conception  of,  660,  note. 
REASONABLE   CAUSE, 

want  of,  194-211,  436-441. 
RECAPTION, 

in  civil  cases,  408. 

in  criminal  cases,  409. 
RECKLESSNESS, 

legal  conception  of,  660,  note. 
REGISTRY, 

notice  by,  152. 
RELATION, 

doctrine  of  entry  by,  469. 
REPETITION, 

of  defamation,  357. 
REPORTS, 

of  trials,  when  privileged,  332-336. 

copyrights  of,  566. 
REPRESENTATION.     (See  Deceit.) 
RESCISSION   OF    CONTRACTS, 

for  misrepresentation  or  other  wrong,  154. 
RESERVOIRS, 

breaking  of,  648,  649. 
REVERSION, 

injuries  to,  4.59. 
RIGHT, 

and  privilege  considered,  1. 

rights  defined  and  explained,  2-4. 

'  rightful '  conduct,  5. 

control  and  authority  over  things,  6. 

gratuities  as  rights,  7,  8. 

intangible  objects  of  right,  9. 

domain  of  tort,  11-14. 

substantive  rights  in  rem  and  in  personam,  11. 


432  INDEX. 

RIGHT,  —  continued. 

rights  paramount  and  consensual,  13. 

not  overturned  by  malice,  46,  47. 
RIOT, 

acts  done  in  quelling,  386. 

arrest  for  affray,  444. 
RISK, 

assuming,  753-764. 

ordinary,  757. 

extraordinary,  760. 

s. 

SALES, 

'  with  all  faults,'  160. 

(See  Conversion;  Deceit.) 
SCIENTER, 

proof  of,  in  deceit,  139-144. 
SEDUCTION, 

Enticing  Away  Children,  256. 

parent's  right  of  action  for  loss  of  service,  256. 

Seduction  stricto  sensii,  257-270. 

parent's  right  of  action,  257-270,  273. 

master  and  servant  as  ground  of  the  right,  257,  273. 

absence  of  child  when  seduced,  258,  259. 

return  of  child,  258,  259. 

parent's  control  taken  away  by  fraud,  260. 

ability  of  child  to  serve,  261. 

child  come  of  age,  202. 

pregnancy  or  disease,  263. 

loss  of  health  due  to  mental  suffering,  264. 

seductive  acts  not  necessary,  265. 

claim  of  mother,  266-269. 

suit  by  child  seduced,  270. 

Guardian  and  Ward,  271-273. 

guardian's  claim,  271. 

ground  of  action,  272. 

Husband  and  Wife,  274-286. 

nature  of  the  wrong,  274. 

charges  which  are  true,  275. 

persuasion  of  wife,  by  parent,  to  leave  her  husband,  276,  277. 

harboring  of  wife,  278-280. 

criminal  intercourse  with  plaintiff's  wife,  281-286. 

ground  of  action,  281,  282. 

separation,  282. 

husband's  infidelity,  283. 

husband's  consent  or  negligence,  284,  285. 

condonation,  286. 


INDEX.  433 


SELF-DEFENCE, 

in  protection  of  person,  380. 
protection  of  property,  381-384. 
protection  of  family,  385. 

SERVANT, 

distinguished  from  agent,  84,  85. 

(See  Master  and  Servant;  Negligence.) 

SIMPLEX   COMMENDATIO, 

meaning  of,  127. 

SLANDER   AND   LIBEL, 

kinds  of  actionable  defamation,  287. 
Interpretation  of  Language,  288-290. 
Fox's  act,  288,  note. 
doctrine  of  mitiori  sensii,  288. 
legal  sense  of  criminal  imputations,  289. 
natural  meaning,  290. 
Publication  and  Special  Damage,  291-296. 
what  constitutes  publication,  291,  292. 
sickness  and  distress  of  mind,  293. 
loss  of  marriage,  294. 
loss  of  consortium,  295. 
defamation  actionable  per  se,  296. 
Imputation  of  Crime,  297-300. 
what  sort  of  imputation  actionable,  297. 
conflict  of  authority,  297. 
infamous  punishment,  297. 
disgraceful  offence,  298. 
charges  of  misdemeanor,  299. 

Contagious  and  Dis^graceful  Disease  charged,  301,  302. 
charge  of  having  had  same,  302. 
Charge  affecting  Plaintiff  in  his  Occupation,  303-308. 
natural  tendency  of  charge,  303-305. 
charges  affecting  servants,  306. 
positions  of  mere  honor,  307. 
party  not  in  exercise  of  his  occupation,  308. 
Charge  tending  to  Disherison,  309,  310. 
bastardy,  310. 
Libel,  311-318. 
definition,  311. 

of  wider  extent  than  slander,  312. 
publishers,  editors,  and  booksellers,  313,  314. 
Truth  of  Charge,  315-318. 
a  good  defence,  when,  315,  316. 
belief  in  truth,  317. 
effigy,  picture,  or  sign,  318. 
Privileged  Communications  and  Malice,  319-357. 

28 


434  INDEX. 

SLANDER   AND   LIBEL,,  — continued. 

proof  of  malice  not  necessary,  319. 

occasion  of  publication,  32U. 

kinds  of  privilege,  321. 

absolute  privilege,  322-329. 

arguments  of  counsel,  322. 

relevancy,  323. 

allegations  in  pleadings,  323.  5 

statements  of  witnesses,  323. 

statements  of  jurors,  323. 

affidavits,  324. 

proceedings  in  Legislature,  326-328. 

privilege  of  execution,  329. 

prima  facie  privilege,  330-357. 

proceedings  before  voluntary  societies,  such  as  church  organizations, 
331. 

reports  of  trials,  332-336. 

comments  in  headings  to,  334. 

ex  parte  proceedings,  336. 

newspapers  not  pi-ivileged,  337. 

matters  of  public  interest,  338. 

publication  of  legislative  proceedings,  339. 

communications  to  public  authorities,  340. 

statements  in  town  meetings,  341. 

statements  before  other  public  bodies,  342. 

use  of  public  prints,  343-345. 

vindicating  character,  344,  345. 

communications  by  master  concerning  his  servant,  346. 

near  relationship,  347. 

confidential  relations,  348. 

voluntary  communications,  349. 

statements  on  inquiry,  350,  35L 

summary  of  doctrine  of  privileged  communications,  352. 

basis  of  prima  facie  privilege,  duty  or  interest,  353-355. 

belief  of  defendant,  354. 

singleness  of  motive,  355. 

moral  duty,  355. 

motive,  356. 

repeating  defamation,  357. 

Criticism,  358-362. 

not  defamation,  358. 

'  fair  criticism,'  358. 

on  works  of  art,  359. 

on  public  men,  360,  361. 

defamatory  accusation  prosecuted,  362. 
SLANDER   OF    TITLE, 

nature  of  wrong,  175-180. 


INDEX.  435 

SLANDER   OF   TITLE,  —  continued. 
malice,  45,  177-179. 
fraud  as  evidence  of  malice,  179,  180. 

SMELLS,   DISAGREEABLE, 

when  nuisance,  626-ti28. 

SNOW   AND   ICE, 

land  covered  with  snow,  152,  note, 
injury  by  fall  of,  from  building,  654. 

SON   ASSAULT  DEMESNE, 

what  amounts  to,  379-386. 

SPECIAL   DAMAGE.     (See  Damage.) 

SPECIAL   PROPERTY, 

meaning  of,  503,  504. 

(See  CoNVKRsioN ;  Trespass.) 
SPORT, 

acts  done  in,  377. 

STATUS, 

as  personal  relation,  68-91. 

STOCKS, 

punishment  by,  279,  note. 

SUCCOR  OF  BEAST, 

entry  for  purpose  of,  487. 

SUNDAY  LAW, 

injury  while  in  violation  of,  791,  792. 

SUPPORT   OF   LAND   AND   BUILDINGS, 

Lateral  Support,  579-596. 

natural  condition  of  soil,  579. 

damage,  580. 

superincumbent  weight,  581-584. 

lateral  support  of  buildings,  582. 

depends  on  grant  or  description,  582. 

subsidence  not  caused  by  weight  of  buildings,  583,  584, 

summary,  585. 

lateral  support  of  contiguous  buildings,  586-588. 

depends  on  grant,  reservation,  or  prescription,  587. 

intervening  building,  588. 

keeping  house  in  repair,  589. 

party-walls,  590-596. 

fixing  beams  into  such  walls,  593-596. 

Subjacent  Support,  597-601. 

freehold  beneath  surface,  597. 

nature  of  right  of  support,  598. 

buildings,  599,  000. 

support  of  upper  tenements,  601. 


436  INDEX. 

SURFACE  WATER.     {See  Watercourses.) 
SURGEONS, 

duties  of,  702-704. 


T. 

TELEGRAPH   COMPANIES, 

care  in  ti'ausuuttiiig  messages,  705-708. 

conditions  limiting  liability,  707. 

liability  to  him  to  whom  the  message  is  sent,  708. 

TENANTS, 

in  common,  464-468,  532. 
negligence  by,  778-784. 

(See  Landlord  and  Tenant;  Negligence.) 

TERMINATION   OF   LIABILITY, 

how  far  liability  extends  in  a  chain  of  things,  97-106. 
causa  proxima,  non  remota  sj^ectatur,  97,  98. 
TERMINATION  OF  PROSECUTION.  (See  Malicious  Prosecution.) 

THIEF, 

possession  by,  455,  note. 

TIME-TABLES, 

representations  by  railway,  141,  note. 

TORT, 

domain  of,  4-14. 
definition  of,  62. 

TRADEMARK, 

infringements  of,  171-173. 
injunction,  174,  note. 

TRADE   NAME, 

wrongful  use  of,  171-173. 
injunction,  174,  note. 

TRANSLATION, 

infringement  of  copyright  by,  517. 

TREES, 

fruit  of,  falling  upon  another's  land,  486. 
overhanging,  486,  note. 

TRESPASS, 

general  meaning  of,  448. 
Possession,  449-474. 
necessity  of,  449,  450. 
without  right,  451,  452. 
entry  under  license,  452. 
contested  possession,  453,  454. 
possession  of  personalty,  455. 


INDEX.  437 


TRESPASS,  —  continued. 

possession  of  thief,  455,  note. 

meaning  of  possession,  456-458. 

injui-y  to  reversion,  459. 

waste,  460. 

personalty  in  hands  of  a  pledgee,  bailee,  or  lessee,  461. 

unenclosed  land,  462,  463. 

possession  of  cotenants,  464-468. 

ouster,  465-467. 

ejectment,  467. 

expulsion  or  withholding,  466. 

conversion  between  cotenants,  468. 

doctrine  of  relation  of  entry,  469. 

consequence  of  re-entry,  470. 

mesne  profits,  470. 

successor  by  descent  or  purchase  to  disseisor,  471. 

entry  under  legal  process,  472. 

entry  under  judicial  sale,  473. 

extent  of  liability,  474. 

What  constitutes  Trespass,  475-499. 

trespass  to  land,  475. 

damage  not  necessary,  475. 

right  of  way,  476. 

trespass  to  bounds,  477. 

enumeration  of  cases  of  justifiable  entry,  478-489. 

trespass  ab  initio,  490-495. 

property  in  animals,  496. 

right  to  kill  trespassing  animals,  496-499. 

Use  of  Premises,  728-752. 
TRESPASS   AB   INITIO, 

meaning  of,  490-495. 

TRESPASSERS, 

duties  of  occupants  of  premises  towards,  729,  730. 

TROVER.     {See  Conversion.) 

TRUSTEES, 

liability  of,  for  negligence,  717-719. 

TRUTH, 

as  a  defence  in  suits  for  defamation,  315-318. 

U. 

UNFAIR  COMPETITION, 

recovering  damages  for,  172. 
UNLAWFUL   ACTS, 

as  subject  of  Part  II.,  49,  50. 
USUFRUCT.     {See  Watercourses.) 


y 


438  INDEX. 

V. 

VALUE, 

misrepresentations  of,  127,  128. 
VIS   MAJOR, 

breaking  of  reservoirs  by,  648,  649. 
VOLENTI  NON  FIT  INJURIA.     (See  Consent.) 

W. 
WANT  OF  PROBABLE  CAUSE.     (See  Malicious  Prosecution.) 
WANTONNESS, 

legal  conception  of,  660,  note. 
WARRANT.     (See  False  Imprisonment.) 
WARRANTY, 

fraudulent,  56. 

distinguished  from  representation,  112-114. 

implied,  142,  143. 
WASTE, 

duty  to  refrain  from,  460. 
WATERCOURSES, 

Usufruct  and  Reasonable  Use,  602-613. 

nature  of  right,  602-606. 

damage,  602-604,  607. 

what  amounts  to  unreasonable  use,  605,  606. 

use  of  stream  for  domestic  purposes,  608. 

water  taken  for  mills,  609. 

diverting  stream  within  one's  land,  610. 

grant  and  prescription,  611. 

appropriation  of  general  surface  water,  612. 

riparian  rights  in  the  Pacific  States,  613. 

Sub-surface  Water,  614. 

percolating  water,  614. 

underground  stream,  614. 

flooding  lands,  621,  622. 

water  in  drains  and  ditches,  623. 

pollution  of  stream,  624. 

legislative  authority,  624. 

milling  operations,  625. 
WILD    ANIMALS, 

damage  by,  639. 
WRIT.     (See  False  Imprisonment.) 


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and  Vendor's  Contract,  treat  these  important  divisions  of  the  subject 
with  great  clearness  and  accuracy. 

The  enlarged  size,  made  necessary  by  the  addition  of  new  matter  and 


4  LITTLE,  BROWN,  AND  COMPANY'S 

Bills,  Notes,  and  Cheques  —  Continued. 

the  fuller  discussion  of  topics  treated  in  the  first  edition,  will  commend 

the  second  edition  to  teachers  and  lawyers. 

Among  the  schools  using  this  book  are  Boston  University,  University  of 
Virginia,  Columbian  University,  Nebraska  University,  etc. 

The  arrangement  of  topics  is  admirable  ;  the  thought  is  clear ;  the  statement 
of  doctrines  is  accurate ;  the  exposition  is  learned.  —  Columbia  Law  Review. 

The  second  edition  contains  all  the  excellencies  of  the  .first,  with  many  im- 
provements. The  writer,  having  used  Mr.  Bigelow's  first  edition  for  some 
years  as  a  text-book  in  the  class-room,  with  the  book  each  year  in  the  hands  of 
one  hundred  or  more  students,  can  testify  with  no  little  confidence  to  the  gen- 
eral accuracy  of  the  text  aud  the  admirable  proportion  and  perspective 
observed  in  the  author's  plan.  Indeed,  in  a  very  considerable  experience,  the 
writer  has  found  none  quite  so  satisfactory  as  the  volume  under  review.  — 
Virginia  Law  Register. 

Too  much  can  hardly  be  said  in  favor  of  this  edition.  A  readable  and  yet 
concise  treatment  of  an  extremely  technical  subject.  —  Harvard  Law  Review. 

Cases  on  the  Law  of  Bills,  Notes,  and  Cheques.  Edited  by 
Melville  M.  Bigelow.     Crown  8vo.     Cloth,  S3. 00  net. 

CARRIERS  —  McCLAIN 

Cases  on  the  Law  of  Carriers.  By  Emlin  McClain,  Judge  of 
the  Iowa  Supreme  Court.  Second  edition,  enlarged.  8vo.  Cloth, 
$4.50  net ;  sheep,  $5.00  net. 

Among  the  schools  using  this  book  are  University  of  Illinois,  Cornell 
University,  University  of  Pennsylvania,  University  of  Indiana,  etc. 

CIVIL  LAW  ~  HOWE 

studies  in  the  Civil  Law  and  its  Relations  to  the  Law  of 
England  and  America.  By  William  Wirt  Howe,  late  Justice  of 
the  Supreme  Court  of  Louisiana.  12mo.  Cloth,  $2.50  net;  law  sheep, 
S3.00  net. 

The  author  has  studied  and  practised  his  profession  in  the  common- 
law  States  of  Missouri  and  New  York  and  in  the  civil-law  State  of 
Louisiana,  and  has  written  in  the  light  of  large  experience.  The  special 
feature  of  the  work  lies  in  the  presentation  of  the  leading  principles  of 
the  Roman  and  Civil  Law  and  the  tracing  of  their  development  and  ap- 
plication in  our  own  jurisprudence  to  the  complications  of  modern  life, 
thus  taking  up  the  comparative  study  of  the  Civil  Law  and  of  the  Law  as 
we  have  it  in  America. 

The  work  is  excellent.  .  .  .  You  have  gone  to  the  bottom  of  your  subject. 
—  Henry  Denis,  Professor  of  Civil  Law,  Tulane  University. 

It  is  simple,  clear,  and  intelligible,  aud  we  can  strongly  recommend  it  to 
the  student,  or  to  auy  one  interested  in  the  subject.  —  The  Nation. 


LA  W  TEXT  BOOKS  AND  CASE  BOOKS  5 

CONFLICT  OF  LAWS  — MINOR 

Conflict  of  Laws  ;  or,  Private  International  Law^.  By  Raleigh 
C.  Minor,  M.A.,  B.L.,  Professor  of  Law  in  the  University  of  Virginia. 
8vo.     Buckram,  S3. 00  )iet ;  sheep,  S3. 50  tiet. 

The  questions  considered  may  touch  the  property  rights  and  business 
interests  of  every  citizen. 

Every  question  involving  the  construction  and  application  of  a  con- 
tract, the  distribution  of  property  under  a  will  or  from  an  intestate 
estate,  the  control  of  a  married  woman  over  her  property,  etc.,  in  a 
foreign  jurisdiction,  State  or  national,  may  be  a  question  of  the  conflict 
of  laws.  These  questions  Mr.  Minor  discusses  carefully,  and  in  the  light 
of  the  latest  decisions  and  the  fullest  research. 

Among  the  schools  using  this  book  are  University  of  Virginia,  loica 
University,  Georgetown  University,  etc. 

The  arrangement  presents  the  law  in  clear-cut  outlines,  and  the  idea  of 
situs  has  served  admirably  as  a  mode  of  classitication.  —  Harvard  Law  Review. 

Every  page  of  the  book  gives  evidence  of  careful  study  and  mature  delib- 
eration ;  and  it  will  no  doubt  be  of  great  value  to  the  student  and  to  the 
practising  lawyer  as  well.  —  Iowa  Law  Bulletin. 

There  is  a  refreshing  absence  of  "straddle;"  the  author  does  not  attempt 
to  bring  conflicting  theories  into  apparent  harmony  by  devising  a  formula 
which  contains  everything  and  says  nothing.  He  distinguishes,  compares, 
makes  his  choice,  and  gives  his  reasons  for  making  it.  —  Columbia  Law  Review. 

CONSTITUTIONAL  LAW  — COOLEY 

The  General  Principles  of  Constitutional  Law  in  the  United 
States  of  America.  By  Thomas  M.  Cooley,  author  of  "A  Treatise 
on  Constitutional  Limitations,"  etc.  Third  edition,  by  A.  C.  Mc- 
Laughlin, of  the  University  of  Michigan.  12mo.  Cloth,  S2.50  net; 
law  sheep,  $3.00  net. 

No  students'  book  is  better  known  or  more  widely  used  than  Judge 
Cooley's  Principles  of  Constitutional  Law  in  the  United  States.  The 
topics  suggested  by  the  increasing  number  of  points  of  contact  and 
interference  between  State  and  Federal  Constitutions  are  particularly 
amplified. 

Author  and  editor  have  avoided  equally  the  dangers  of  becoming  too 
theoretical  and  of  compiling  a  mere  digest  of  decisions.  The  principles 
and  deductions  stated  are  necessarily  condensed,  but  there  are  always 
sufficient  references  in  the  foot-notes  to  enable  the  student  to  test  any 
principle  by  the  cases. 

Among  the  schools  using  this  book  are  University  oj" Michigan,  St.  Louis 
Law  School,  Bloomington,  Georgetown  University,  Washington  and  Lee 
University,  University  of  Nebraska,  etc. 


LITTLE,  BROWN,  AND  COMPANY'S 


Constitutional  Law  —  Continued. 

An  admirable  presentatiou  of  a  deep  and  extensive  subject.  —  Western 
Reserve  Law  Journal. 

The  best  and  most  complete  handbook  for  the  use  of  students  on  the  sub- 
ject of  Constitutional  Law  of  which  I  have  any  knowledge.  —  Hon.  R.  H. 
Alvey,  Court  of  Appeals  of  the  District  of  Columbia. 

A    Selection    of    Cases    on    Constitutional    Law.      By  Emlin 

McClain.     8vo.     Cloth,  $4.50  net. 

Amonij  the  schools  using  this  hook  are  University  of  Illinois,  Cornell 
Unicersity,  University  of  loica,  etc. 

CONTRACTS  — HAERIMAN 

The  Law  of  Contracts.  By  Edward  A.  IIarrimax,  Professor 
of  Law  in  the  Xortliwestern  University  Law  School.  Second  edition. 
8vo.     Revised.     Buckram,  83.00  net ;  sheep,  $3.50  7iet. 

Mr.  Ilarriman  has  given  us  an  American  book  on  Contracts  treating 
those  developments  of  the  law  peculiar  to  the  United  States.  The  treat- 
ment is  logical  and  systematic.  Recognizing  that  law  is  not  an  exact 
science,  the  author  has  combined  particular  rules  into  a  general  theory. 
These  rules  have  grown  up  from  the  old  actions  of  debt  and  contract, 
until  now  many  are  purely  e(iuitable  in  their  origin.  While  adherino- 
closely  to  the  decisions,  this  book  gives  a  clear  and  intelligible  theory  of 
contracts. 

The  authorities  are  those  selected  by  men  of  special  ability  as  explain- 
ing the  development  and  present  state  of  the  law.  Where  these  cases 
have  been  printed  in  collections  of  cases,  or  "  Cases  Books,"  references 
to  these  books,  as  well  as  to  the  original  source,  are  given. 

The  present  edition  is  much  enlarged,  but  conciseness  of  statement 
and  clearness  of  reasoning  have  not  been  sacrificed.  The  special  feature 
of  Harrinian  on  Contracts  is  the  full  treatment  of  those  departures  from 
the  common  law  now  become  permanent  parts  of  the  positive  law  in  so 
many  American  jurisdictions. 

Among  other  changes  from  the  first  edition,  it  will  be  noticed  that  the 
very  technical  and  philosophical  introduction  now  far  more  properly 
appears  as  an  appendix  to  the  whole  discussion  of  the  subject. 

_  Remains  the  very  best  book  of  principles  of  the  Law  of  Contracts  which 
either  a  student  or  a  practitioner  in  America  can  consult.  —  American  Law 
Register. 

The  author  has  succeeded  in  presenting  the  leading  principles  of  the  Law 
of  Contracts  in  an  exceptional! v  intelligible  and  readable  manner.  —  Zeoa/ 
Intelligencer. 

The  second  edition  is  even  a  more  useful  working  tool  than  the  first.  — 
Baltimore  Sun. 


LAW  TEXT  BOOKS  AND  CASE  BOOKS  7 

CRIMINAL   LAW  — MAY 

The  Law  of  Crimes.  By  J.  Wilder  May,  Chief-Justice  of  the 
Municipal  Court  of  the  city  of  Boston.  Second  edition,  edited  by 
Joseph  Henry  Beale,  Jr.,  Professor  of  Law  in  Harvard  University. 
12mo.     Cloth,  $2.50  net;  law  sheep,  $3.00  net. 

This  edition  contains  large  additions.  The  original  plan  included  no 
discussion  of  the  subjects  of  Criminal  Pleading  and  Practice ;  it  was 
found  that  it  was  better  adapted  to  the  use  of  students  if  these  subjects 
were  briefly  considered,  and  this  has  accordingly  been  done.  Much  has 
also  been  added  to  the  first  chapter,  which  contains  the  general  princi- 
ples underlying  the  criminal  law. 

Among  the  schools  using  this  book  are  Dickinson,  iiloomington,  Boston 
University,  St.  Louis,  etc. 

It  is  to  be  especially  commended  for  its  clear  and  concise  definitions,  as  also 
for  its  citations  of  leading  cases  directly  upon  the  matter  under  discussion.  — 
J.  H.  Carpenter,  Law  Facility,  Universiti/  of  Wisconsin. 

It  is  a  very  compact  manual,  and  the  contributions  of  Mr.  Beale  add  to  its 
value  in  many  important  particulars.  —  J.  B.  Moore,  ichen  Professor  of  Crimi- 
nal Law  in  Columbia  University. 

The  text  is  clear,  simple,  yet  exact,  the  references  unusually  good,  and  the 
method  and  order  excellent.  It  is  the  best  work  I  have  yet  seen  for  the 
student's  u.se  and  upon  which  to  base  lectures  upon  Criminal  Law.  —  C.  0. 
Bishop,  Professor  of  Criminal  Law,  St.  Louis  Laiv  School. 

It  is  not  a  mere  synopsis,  but  an  interesting  discussion,  quite  full  enough  to 
give  the  student  a  true  view  of  the  subject,  and  minute  enough  to  be  a  useful 
handbook  to  the  practitioner.  — Neiv  York  Law  Journal. 

Cases  on  Criminal  Law.  By  H.  W.  Chaplin.  New  edition, 
enlarged.     Crown  8vo.     Cloth,  S3. 00  7iet. 

DAMAGES  —  SEDGWICK 

Elements  of  Damages  :  A  Handbook  for  the  Use  of  Students 
and  Practitioners.  By  Arthur  G.  Sedgwick.  12mo.  Cloth,  $2.50 
net:  law  sheep,  $3.00  net. 

This  book  is  not  an  abridgment  of  the  work  embodied  by  the  author 
in  his  edition  of  the  well-known  three-volume  treatise  on  the  Measure  of 
Damages,  by  Theodore  Sedgwick.  The  principles  are  stated  in  the  form 
of  rules  or  propositions  of  law  such  as  a  court  might  lay  dowji  to  a  Jury, 
and  these  propositions  are  illustrated  by  the  cases  from  which  they  have 
been  drawn.  > 

Among  the  schools  using  this  book  are  Vanderbilt  University,  St.  Louis, 
University  of  Wisconsin,  etc. 

As  a'  students'  book  it  is  ver\'  admirable.  Probably  no  one  but  the  author 
can  see  how  it  could  be  made  better  than  it  is.  —  Atnerican  Law  Review. 


8  LITTLE,  BROWN,  AND  COMPANY'S 

Damages  —  Continued. 

I  can  cheerfully  recommend  the  book  as  an  excellent  presentation  of  the 
elements  of  the  subject. — Emlin  McClain,  Iowa  Supreme  Court,  late  Chan- 
cellor Law  Department,  University  of  Iowa. 

I  think  he  has  solved  the  problem  of  an  elementary  book  which  is  clear 
without  being  superficial.  —  Prof.  J.  H.  Beale,  Harvard  Law  School. 

Clear,  concise,  and  thorough. —  Yale  Law  Journal. 

Cases  on  the  Law  of  Damages.  By  Joseph  H.  Beale,  Jr.,  of 
the  Harvard  Law  School.     Crown  8to.     Cloth,  S3. 00  net. 

Among  the  schools  using  this  book  are  University  of  New  York,  Harvard, 
Columbia,  University  of  Chicago,  etc. 

DICTIONARY  -.  STIMSON 

Glossary  of  Technical  Terms,  Phrases,  and  Maxims  of  the 
Common  Law.  By  Frederick  Jesup  Stimson.  12mo.  Cloth, 
S2.50  net;   law  sheep,  S3. 00  net. 

A  concise  Law  Dictionary,  givinsr  in  common  Enjilish  definitions  of 
the  words  and  phrases,  English,  Saxon,  Latin,  or  French,  which  are  of 
common  technical  use  in  the  law.  The  usual  acceptation  of  each  phrase 
is  given  in  much  the  same  general  shape  as  it  stands  in  the  mind  of  the 
trained  lawyer. 

There  is  no  other  book  ichich  puts  within  reach  of  the  student  the  defini- 
tions he  wants,  in  a  clearer  fashion,  and  no  Law  Dictionary  so  constantly 
available  can  be  bought  for  as  low  a  price. 

A  very  convenient  little  work,  especially  useful  to  students  of  the  law.  — 
Chicago  Legal  News. 

DOMESTIC  RELATIONS  — E WELL 

Cases  on  Domestic  Relations.  By  Marshall  D.  Ewell.  Stu- 
dents' edition,  rearranged.     8vo.     Cloth,  S4.50  net. 

ELEMENTARY  LAW— ROBINSON 

Elementary  Law.  By  William  C.  Robinson,  LL.D.,  Dean  of  the 
Law  Department,  Catholic  University  of  America,  formerly  Professor  of 
Elementary  Law  in  Yale  College,  author  of  "  Elements  of  American 
Jurisprudence,"  etc.     12mo.     Cloth,  S2.50  net;  law  sheep,  S3. 00  net. 

Contains  a  statement  of  the  principles,  rules,  and  definitions  of  Amer- 
ican Common  Law,  both  civil  and  criminal,  arranged  in  logical  order, 
with  references  to  treatises  in  which  such  definitions,  rules,  and  prin- 
ciples are  more  extensively  discussed. 

Among  the  schools  using  this  book  are  Cleveland,  Bloomington,  St.  Louis, 
Syracuse,  Columbian  University,  etc. 


LAW  TEXT  BOOKS  AND  CASE  BOOKS 


Elementary  Law  —  Continued. 

The  book  is  convenient  to  the  instructor  who  ■n-ill  use  it  as  a  text  to  be 
amplified  in  his  lectures,  and  valuable  to  the  student  who  will  consult  the 
references.  —  Prof.  M.  F.  Force,  LL.D.,  lolien  at  the  Cincinnati  Law  School. 

Will  prove  an  invaluable  aid  to  students  just  beginning  their  legal  studies. 
—  American  Law  Review. 

EQUITY  -  BIGELOW 

Elements  of  Equity  for  the  Use  of  Students.  By  Melville 
M.  BiGELOW,  Ph.D.,  Dean  of  the  School  of  Law,  Boston  University, 
author  of  "The  Law  of  Torts,"  etc.  12mo.  Cloth,  S2.50  7iet ;  law 
sheep,  S3. 00  net. 

It  is  to  be  commended  for  its  clearness  and  conciseness  of  statement.  I 
regard  the  first  chapter  as  a  model.  The  doctrines  of  Tacking,  Subrogation, 
and  Marshalling,  found  in  Chapters  XIV.,  XIX.,  and  XX.,  are  more  easily 
comprehended  than  in  any  other  work  on  those  subjects  that  I  have  seen.  — 
Hon.  J.  H.  Carpenter,  Madison,  Wis. 

EVIDENCE  —  STEPHEN 

A  Digest  of  the  Law  of  Evidence.  By  Sir  James  Fitz-James 
Stephex.  From  the  fourth  English  edition.  With  Notes  and  Addi- 
tional Illustrations  to  the  present  time,  chiefly  from  American  cases. 
12mo.     Cloth,  $2.50  net;  law  sheep,  S3. 00  net. 

A  full  reprint  of  the  fourth  English  edition,  revised  by  the  author, 
with  references  to  American  cases.  Short  as  it  is,  we  believe  it  will  be 
found  to  contain  practically  the  whole  law  of  the  subject. 

MEDICAL  JURISPRUDENCE -EWELL 

A  Manual  of  Medical  Jurisprudence  for  the  Use  of  Students 
at  Law  and  of  Medicine.     By  Marshall  D.  Ewell,  M.  D.,  LL.D. 

r2mo.     Cloth,  S2.50  net;  law  sheep,  S3. 00  7iet. 

Mr.  Ewell  has  produced  a  work,  which,  within  a  moderate  compass, 
states  all  the  leading  facts  and  principles  of  the  science  concisely  and 
yet  clearly. 

It  is  excellently  done.  -I  wish  it  might  be  read  by  every  student  of  law  as 
well  as  by  every  student  of  medicine.  —  Prof.  Henry  Wade  Rogers,  when 
at  University  of  Michigan. 

I  can  safely  say  that  for  use  as  a  text-book,  either  in  a  medical  college  or 
law  school,  it  is  preferable  to  any  book  of  my  acquaintance.  In  his  chapter  on 
Malpractice,  Professor  Ewell  has  succeeded,  within  the  compass  of  eighteen 
pages,  in  setting  forth  the  general  doctrine  of  the  law  so  comprehensively  as 
to  make  it  highly  useful  for  the  practitioner  as  well  as  the  student.  —  Henry 
H.  Ingersoll,  Dean  Law  Department,  University  of  Tennessee. 


10  LITTLE,  BROWN,  AND  COMPANY'S 

PARTNERSHIP  —  BURDICK 

The  Law^  of  Partnership,  including  Limited  Partnerships.  By 
Francis  M.  Burdick,  Dwight  Professor  of  Law  in  Columbia  Uni- 
versity.    12mo.     Cloth,  S2. 50  ne<;  sheep,  $3.00  ne^ 

Professor  Burdick  discusses  the  principles  of  Partnership  Law  with 
especial  view  to  the  needs  of  students  revealed  to  him  in  his  experience 
with  his  classes.  The  many  teachers  and  students  who  have  used  the 
book  unite  in  its  praise,  for  concise  statement  of  the  law,  accurate  cita- 
tion of  the  authorities,  and  clear  reasoning. 

He  has  not  written  his  book  and  used  his  space  to  establish  any  one  of 
the  three  theories  of  partnership,  but  has  stated  the  different  views  con- 
cisely and  clearly,  and  his  book  is  a  most  valuable  addition  to  the  law  of 
the  subject. 

Among  the  schools  using  this  book  are  Cornell,  Buffalo,  Colunihia,  etc. 

Professor  Burdick's  book  is  the  only  short  American  work  on  the  subject, 
and  it  is  a  pleasure  to  find  it  so  admirably  adapted  to  the  purpose  for  wliich 
it  was  written.  —  Harvard  Law  Review. 

The  book  is  the  best  of  its  kind.  .  .  .  A  student  could  not  ask  for  anything 
better  for  his  purpose.  —  C.  W.  Pound,  Professor  Cornell  College  of  Law. 

Selected  Cases  on  the  Law  of  Partnership,  including  Limited 
Partnerships.     By  F.  M.  Burdick.     8vo.     Cloth,  S4.50  net. 

PLEADING,  CIVIL  — HEARD 

The  Principles  of  Pleading  in  Civil  Actions.     By  Franklin 
FisKE  Heard.     12mo.     Cloth,  $2.50  net;  law  sheep,  S3.00  net. 
Really  an  American  edition  of  Stephen  on  Pleading. 

Under  whatever  system  of  statutory  procedure  a  law  student  may  design 
to  practise,  he  will  find  it  equally  necessary  to  become  familiar  with  the  prin- 
ciples of  common  law  pleading.  Mr.  Heard's  work  is  a  plain  and  clear  guide 
to  these.  —  Hon.  Simeon  E.  Baldwin,  Law  Department  of  Yale  College. 

PLEADING,    CODE  — BRYANT 

The  Principles  of  Code  Pleading  for  the  Use  of  Students.  By 
Edwin  E.  Bryant,  Dean  of  the  l^aw  Department  of  the  State  Univer- 
sity of  Wisconsin.  Second  edition.  12mo.  Cloth,  $2.50  Mfi ;  law  sheep, 
S3. 00  7iet. 

This  book  is  written  to  bring  within  easy  reach,  in  condensed  and 
clear  form,  the  true  elements  of  the  subject ;  to  give  sufficient  knowl- 
edge of  the  old  common  law  pleading  for  a  foundation  for  the  less 
formal,  but  not  necessarily  less  exact,  pleading  under  the  code,  and  to 
put  in  orderly  array  the  principles  of  this  branch  of  the  law.     The  prin- 


LAW  TEXT  BOOKS  AND  CASE  BOOKS  11 

Pleading,  Code  —  Continued. 

ciples  of  Common  Law  Pleading  are  fully  discussed  as  an  introduction. 
A  table  showing  in  what  sections  of  the  different  State  Codes  the  various 
subjects  are  treated  is  a  novel  feature  of  great  value. 

Among  the  schools  using  this  book  are  Universiiij  of  Wisconsin,  St. 
Louis,  Yale,  Columbia,  etc. 

It  points  out  clearly  the  changes  the  Codes  have  made  in  the  common  law 
system  of  pleading.  — Harvard  Law  Review. 

The  principles  are  presented  in  a  clear,  satisfactory  manner,  and  the  Code 
References  are  a  valuable  addition.  In  short,  it  exactly  supplies  a  want  as  a 
text-book  for  students,  M'hether  in  offices  or  law  schools,  wherever  the  reformed 
procedure  prevails  or  is  largest.  —  Charles  M.  Campbell,  Law  Department 
Colorado  State  University. 

PLEADING,  COMMON   LAW  — PERRY 

Common  LaTV  Pleading  :  Its  History  and  Principles.  Includ- 
ing Dicey's  Rules  concerning  Parties  to  Action  and  Stephen's  Rules  of 
Pleading.     By  R.  Ross  Perry.     8vo.     S3. 50  7iet. 

This  book  is  written  from  the  standpoint  of  the  student  searching  after 
the  origins  of  rules  in  order  to  explain  their  existence.  Stephen's  Rules, 
Chitty's  Forms,  and  what  Dicey  has  to  say  on  Parties  are  drawn  upon 
freely,  and  no  other  book  on  Pleading  gives  what  Perry  does,  the  results 
of  the  researches  and  discussions  of  the  last  fifty  years. 

Among  the  schools  using  this  book  are  Cornell,  Columbia,  University  of 
Michigan,  Georgetown  University,  Syracuse,  etc. 

The  intricacies  of  a  subject  generally  considered  tlie  most  difficult  in  the 
curriculum  are  cleared  up.  Mr.  Perry  has  made  the  subject  interesting  from 
the  start,  which  is  no  slight  cause  for  praise.  —  Yale  Law  Journal. 

The  reader  is  taken  from  the  most  primitive  remedies  involving  mere  self- 
help  to  complicated  actions  before  courts  of  law,  and  the  several  forms  of 
action  are  developed  clearly.  — Harvard  Law  Review. 

PLEADING,   CRIMINAL  — BE  ALE 

The  Law  of  Criminal  Pleading.  By  Joseph  II.  Beale,  Jr., 
LL.B.,  Professor  of  Law  in  Harvard  University.  12mo.  Cloth,  $2.50 
net;  sheep,  $3.00  net. 

Professor  Beale  treats  of  Criminal  Pleading  and  Procedure  in  this 
volume  clearly  and  at  sufficient  lengih  for  all  the  purposes  of  the  law 
school  and  for  most  of  those  of  the  law  office.  The  cases  cited  as 
authorities  are  drawn  freely  from  the  various  States. 

Amo7\g  the  schools  using  this  book  are  Harvard,  University  of  Chicago, 
University  of  Indiana,  etc. 


12  LITTLE,  BROWN,  AND  COMPANY'S 

Pleading,  Criminal —  Continued. 

A  condensed  but  extremely  accurate  statement  of  the  law,  useful  not  only 
to  the  student  for  whom  it  is  principally  intended,  but  to  the  practising 
lawyer  as  well.  —  loira  Law  Bulletin. 

It  embraces  the  whole  subject  of  Criminal  Procedure  and  Pleading  in  a 
small  compass ;  the  condensation  has  been  made  with  great  skill  and  accuracy. 
—  Yale  Law  Journal. 

SALES -BURDICK 

The  Law  of  Sales  of  Personal  Property.  By  Francis  M. 
BuKDiCK,  Dwight  Professor  of  Law  in  Columbia  University.  Second 
edition,  revised.     8vo.     Buckram,  $3.00  ?!e< ;  sheep,  $3.50  ?ie<. 

To  the  many  suggestive  cases  on  different  phases  of  the  subject  of 
Sales  decided  since  the  first  edition  was  published,  particular  attention 
has  been  paid.  The  new  cases  on  well-fixed  rules  of  law  have  been 
studied  and  analyzed  with  great  care,  and  the  results  embodied  in  the 
text,  the  cases  fi'om  which  the  results  were  obtained  being  freely  cited 
in  the  notes.  Among  the  most  important  subjects  which  have  received 
fuller  treatment  are  "  Reservation  of  the  Right  of  Disposal,"  "  Condi- 
tions and  Warranties,"  and  "  Interest  as  Damages."  On  some  doubtful 
questions  cases  decided  in  the  last  few  years  have  thrown  effective  light, 
and  these  cases  are  carefully  studied  and  cited. 

Passages  found  not  to  have  been  easily  understood  by  students  have 
been  amplified  and  simplified,  until  the  book  now  stands  a  complete 
book-  on  the  i^rinciples  of  the  Law  of  Sales. 

Among  the  schools  usinrj  this  book  are  University  of  Pennsylvania,  New 
York  Laio  School,  Cornell,  Columbia,  University  of  Nebraska,  etc. 

Selected  Cases  on  the  Law  of  Sales,  including  Limited 
Partnership.     By  F.  M.  Burdicic.     8vo.     Cloth,  $4.50  net. 

STUDY  OF  CASES  — WAMBAUGH 

The  Study  of  Cases  :  A  Course  of  Instruction  in  Reading 
and  Stating  Reported  Cases.  Composing  Head-Notes  and 
Briefs,  Criticising  and  Comparing  Authorities,  and  Compiling 
Digests.  By  Eugenp:  Wamraugh,  Professor  in  the  Law  Department 
of  Harvard  University.  Second  edition.  12mo.  Cloth,  $2.50  ne<;  law 
sheep,  $3.00  net. 

The  purpose  of  the  work  is  "to  teach  the  methods  by  which  lawyers 

detect  dicta,  and  determine  the  weight  of  reported  cases." 

Among  the  most  valuable  publications  for  the  use  of  students  which  have 
appeared  in  recent  years.  —  llie  American  Law  Register  and  Review. 

Cases  for  Analysis.  By  Eugkne  Wambaugh.  Crown  8vo.  Cloth, 
$3.00  net. 


LAW  TEXT  BOOKS  AND  CASE  BOOKS  13 

TORTS  — BIGELOW 

The  Law  of  Torts.  By  Melville  ]\Iadisox  Bigelow,  Ph.D., 
Harvard,  Dean  of  School  of  Law,  Boston  University.  Seventh  edition. 
Revised  and  enlarged.     8vo.     Buckram,  $3.00  nety  sheep,  ^3.50  jiet. 

This  edition  of  'Bigelow  on  the  Law  of  Torts"  includes  useful 
changes  of  classification  and  important  additions. 

Full-faced  indented  side-notes  have  been  added,  which  give  a  ready 
insight  into  the  subject-matter  of  the  page  at  a  glance. 

The  long  sections  of  the  jirevious  editions  have  been  judiciously  sub- 
divided, and  the  406  octavo  pages  are  now  divided  into  817  consecutively 
numbered  paragraphs. 

All  these  improvements,  added  to  the  great  advances  in  the  fulness  of 
the  discussion  of  the  subject,  and  the  judicious  increase  in  cases  cited, 
make  "  Bigelow's  Law  of  Torts "  the  best  book  for  students  on  the 
subject. 

Among  (he  schools  usiiig  (his  book  are  National  University,  Kansas 
University,  Washington  and  Lee  University,  University  of  Virginia,  Boston 
University,  etc. 

Cases  on  the  Law  of  Torts.  Edited  by  Melville  M.  Bigelow. 
Crown  8vo.     Cloth,  S3. 00  net. 

UNITED   STATES   COURTS  — CURTIS 

Jurisdiction,  Practice,  and  Peculiar  Jurisprudence  of  the 
Courts  of  the  United  States.  By  Benjamin  R.  Curtis,  LL.D., 
late  Associate  Justice  of  the  Supreme  Court  of  the  United  States.  Edited 
by  George  Ticknor  Curtis  and  Benjamin  R.  Curtis.  Second 
edition  by  II.  C.  Merwin,  Law  Department  of  Boston  University. 
12mo.     Cloth,  $2.50  n(,'<;  law  sheep,  S3. 00  7ie^ 

These  lectures  were  delivered  by  the  late  Judge  Curtis  in  the  Har- 
vard Law  School.  Mr.  Merwin  has  considered  the  recent  developments 
in  the  practice  of  the  Federal  Courts  ;  and  his  additions  in  the  second 
edition  deserve  the  words  of  commendation  bestowed  upon  Judge 
Curtis's  original  text. 

Among  the  schools  using  (his  book  are  Cleveland,  Columbian  University, 
George(own  Uiiiversity,  etc. 

No  other  book  for  students  on  United  States  Courts  is  equal  to  the  second 
edition  of  Curtis.  —  Prof.  C.  W.  Pound,  UorneU  College  of  Law. 

It  is  by  far  tlie  best  epitome  of  that  e.xtensive  subject ;  and  tlie  clearness 
of  the  style  and  orderly  arrangement  will  especially  recommend  it  to  students. 
—  Hon.  Edmuxd  H.  Bennett,  late  Denn  of  School  of  Law,  Boston  University. 

A  model  of  what  such  a  book  should  be.  —  The  Nation. 


14  LITTLE,  BROWN,  AND  COMPANY'S 

WILLS  —  BIGELO  W 

The  Law  of  Wills.  For  Students.  By  Melville  M.  Bigelow, 
Ph.D.,  author  of  "  The  Law  o£  Torts,"  etc.,  editor  of  "  Sixth  American 
Edition  of  Jarman  on  Wills,"  etc  12mo.  Cloth,  $2.50  net;  sheep, 
S3. 00  net. 

No  teacher  of  law  in  America  is  more  familiar  with  the  theory  of  the 
Law  of  Wills  than  Mr.  Bigelow,  and  there  is  no  book  on  the  subject  so 
useful  for  students  as  this. 

Among  the  schools  using  this  book  are  Bloomington,  Weste7-n  Reserve 
University,  etc. 

The  volume  contains  a  masterly  exposition  of  the  Law  of  Wills. — Virginia 
Lair  Register. 

A  good  text-book  for  students  on  Wills  has  been  supplied.  Mr.  Bigelow 
combines  the  results  of  his  experience  in  teaching  with  his  researches  in  the 
law  of  wills.    His  book,  therefore,  is  accurate  and  clear. —  Yale  Law  Journal. 

It  is  an  able  and  scholarly  treatise,  an  excellent  condensation  of  the  Law  of 
Wills,  and  admirably  adapted  for  the  use  of  students. —  S.  S.  Cole,  Des 
Moines,  la. 

The  following  Case  Books  have  been  mentioned  with  the  texts  which 
they  accompany. 

Beale's  Cases  on  the  Law  of  Damages. 

Bigelow's  Cases  on  the  Law  of  Bills,  Notes,  and  Cheques. 

Bigelow's  Cases  on  the  La^v  of  Torta. 

Burdick's  Cases  on  Partnership  (8vo.  $4.50  net). 

Burdick's  Cases  on  Sales,  2d  ed.  (8vo.  $4.50  net). 

Chaplin's  Cases  on  Criminal  Law. 

Huffcut's  Cases  on  Agency. 

McClaln's  Cases  on  Carriers,  2d  ed.  (8vo.  $4.50  net). 

McClain's  Cases  on  Constitutional  Law  (Bvo.  $4.50  net). 

Wambaugh's  Cases  for  Analysis. 


The  Volumes  of  Cases  are  bound  in  cloth  only,  and  unless  otherwise  stated, 
the  size  is  crown  octavo,  and  the  price,  $3.00  net. 


In  addition  to  the  above  case  books 

LANGDELL     AND     WILLISTON  -  CASES    ON 
THE   LAW   OF   CONTRACTS 

A  Selection  of  Cases  on  the  Law  of  Contracts.  Vol.  I.,  Second 
edition,  by  C.  C.  Langdell,  Dean  of  the  Harvard  Law  School.  Vol. 
II.,  by  Samuel  Williston,  of  the  Harvard  Law  School.  2  vols.  8vo. 
$10.00  net. 


LAW  TEXT  BOOKS  AND  CASE  BOOKS  15 

LT  the  head  of  all  books  on  Evidence  for  students  has  stood 
for  nearly  seventy  years  Volume  One  of 

Greenleaf  on  Evidence 

In  its  sixteenth  edition,  edited  by  Prof.  John  H.  Wigmore,  of 
the  Northwestern  University,  it  is  far  superior  to  any  other 
text-book  for  the  student  or  practitioner. 

GREENLEAF    ON    EVIDENCE 

Sixteenth  Edition.  A  Treatise  on  the  Law  of  Evidence.  By 
SiMON  Greenleaf.  Edited,  Vol.  L,  by  John  H.  Wigmore,  Professor 
of  the  Law  of  Evidence,  Northwestern  University,  Chicago,  and  Vols. 
II.  and  HI.,  by  Edward  A.  Harriman,  Professor  of  Law,  Northwestern 
University,  and  author  of  "  Elements  of  the  Law  of  Contracts."  3  vols. 
8vo.     S15.00  net.     Separate  vols.,  S5.00  net. 

The  Sixteenth  is  the  only  authorized  edition,  containing  every  word  of 
Greenleaf 's  text,  —  rearranged  in  part  to  conform  to  the  mo.'.t  modern  de- 
velopment of  the  law,  —  toith  extensive  additions  by  John  H.  Wigmore  and 
Edward  A.  Harriman. 

The  great  changes  and  additions  in  this  Treatise  are  principally  to  be 
found  in  the  first  volume,  which  covers  the  General  Principles  of  the 
Law  of  Evidence,  and  are  entirely  the  work  of  John  H.  Wigmore, 
Professor  of  the  Law  of  Evidence  in  the  Northwestern  University  of 
Chicago.     They  may  be  summarized  as  follows :  — 

New  chapters,  treating  very  fully  the  topics  of  Real  Evidence,  Rele- 
vancy, Circumstantial  Evidence,  Exceptions  to  Hearsay  Rule,  and  Reg- 
ular Entries  in  the  Way  of  Business,  and  a  great  number  of  new  sections 
throughout  the  volume,  have  been  added. 

The  statements  of  the  whole  law  have  been  put  in  the  text. 

Matter  now  obsolete  has  been  dropped  from  the  text. 

Statutes  and  Constitutional  provisions  bearing  on  the  subject,  chiefly 
on  Competency  and  Witnesses,  are  in  this  edition  for  the  first  time 
reprinted  in  full. 

Full  Tables  of  Contents  at  the  heads  of  the  chapters  have  been  added, 
as  well  as  new  headlines  to  each  page. 

WALKER   ON    AMERICAN    LAW 

Introduction  to  American  Law.  Designed  as  a  First  Book  for 
Students.  By  Timothy  Walker,  LL.D.,  late  Professor  of  Law  in 
the  Cincinnati  College.  Tenth  edition,  revised  by  Clement  Bates,  of 
the  Cincinnati  Bar.     8vo.     S6.00. 


16  LAW  TEXT  BOOKS  AND  CASE  BOOKS 

SOHOULER  ON   BAILMENTS  AND   CARRIERS 

A  Treatise  on  the  Law  of  Bailments.  Including  Carriers,  Inn- 
keepers, and  Pledge.  By  James  Schouler.  Third  edition.  -  8vo. 
$6.00. 

SCHOULER    ON   DOMESTIC    RELATIONS 

A  Treatise  on  the  Law^  of  the  Domestic  Relations.  Embrac- 
ing Husband  and  Wife,  Parent  and  Child,  Guardian  and  "Ward,  Infancy, 
and  Master  and  Servant.  By  James  Schouler.  Fifth  edition.  8vo. 
$6.00. 

KENT'S    COMMENTARIES 

Commentaries  on  American  Law.  By  Hon.  James  Kent.  Four- 
teenth edition,  retaining  all  of  Judge  Holmes's  notes,  and  thoroughly 
revised  and  much  enlarged  by  John  M.  Gould,  author  of  "  Notes  on 
the  Revised  Statutes  of  the  United  States,"  and  editor  of  "Perry  on 
Trusts,"  etc.     4  vols.     8vo.     $15.00  net.     Separate  vols.,  $3.75  7iet. 

More  closely  connected  with  the  very  foundation  of  modern  Ameiican 
law  than  any  other  book,  save  possibly  Greenleaf  on  Evidence. 

The  fourteenth  edition  contains  all  of  Chancellor  Kent's  latest  addi- 
tions, the  invaluable  notes  of  Judge  Oliver  AVendell  Holmes,  and  the 
latest  exposition  of  all  topics  by  John  M.  Gould. 


Any  text-hook  mentioned  on  these  pages  will  be  sent,  at  the  pub- 
lishers' expense,  to  any  address  in  the  United  States  or  Canada  when 
the  piice  accompanies  the  order. 

We  should  be  pleased  to  send  additional  information  regarding  any 
of  the  law  text-hooks  described  on  these  pages. 

We  will  gladly  furnish  a  complete  catalogue  describing  the  works 
of  many  of  the  greatest  legal  writers  of  Ametica,  —  Kent,  Green- 
leaf,  Parsons,  Washburn,  Story,  Walker,  May,  Po7neroy,  Bigelow, 
Buswell,  Coolcy,  Dillon,  Morawetz,  Morse,  Noyes,  Perry,  Robinson, 
Schouler,  Spelling,  Woerner,  and  many  others.  Also,  a  copy  of"  The 
Law  Book  Bulletin,"  which  is  issued  gratis  at  irregular  intervals  and 
devoted  to  legal  bihliography. 

LITTLE,  BROWN,  AND  COMPANY 

PUBLISHERS,  254  WASHINGTON  ST.,  BOSTON,  MASS, 


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UNIVERSITY  OF  VIRGINIA  LIBRARY 

The  return  of  this  book  is  due  on  the  date 
indicated  below 

JULB   1937 


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